Ram v Pal [1963] FJLawRp 45; [1963] 9 FLR 141 (20 September 1963)

[1963] 9 FLR 141

IN THE SUPREME COURT OF FIJI

SHIU RAM

v

SURUJ PAL

[SUPREME COURT, 1963 (Hammett Ag. C.J.), 9th August, 20th September]

[Appellate Jurisdiction]

Landlord and tenant - Crown lands - consent of Director of Lands to transfer of tenancy - at - will - not required except in case of protected tenancy - Crown Lands Ordinance (Cap. 138) s. 15 (1).

Contract - illegality - false statement in application for consent of Director of Lands to transfer - transaction not tainted with illegality unless consent required by Ordinance - Crown Lands Ordinance s. 41.

In an application to the Director of Lands for consent to the transfer of a tenancy - at - will of Crown land, the appellant and respondent intentionally mis - stated the consideration, which was in fact £195 and which was paid by the appellant to the respondent. The application for consent was withdrawn and, the transfer not having taken place, the appellant sued the respondent for the return of the £195.

Section 41 of the Crown Lands Ordinance renders it an offence for any person to make a false declaration in relation to any matter or thing "required to be done by this Ordinance".

Held. - (1) No provision of the Crown Lands Ordinance made the consent of the Director of Lands necessary for the proposed transfer of the tenancy in question and the false statement was not therefore made in relation to anything required to be done by the Crown Lands Ordinance.

(2) The transaction was not therefore tainted with illegality and the money paid pursuant to it was recoverable.

Appeal from judgment of the Magistrate's Court.

McNally for the appellant.

Regan for the respondent.

The facts sufficiently appear from the judgment.

HAMMETT Ag. C.J. [20th September, 1963] –

The defendant - respondent was a tenant-at-will of certain Crown Land known as "Lot 1646 Koroqaqa". He agreed to transfer his tenancy-at-will to the plaintiff-appellant for the sum of £195, subject to the consent of the Director of Lands.

Both parties signed an application to the Director of Lands for his consent to the transfer. They both knowingly and deliberately misled the Director of Lands by stating falsely in this application for his consent that the consideration was "natural love and affection" instead of stating that the true consideration was £195. They did this because they both believed the Director of Lands would refuse his consent if he knew what was the true consideration.

The Court below held as fact that the appellant actually paid this £195 to the respondent and there is no appeal against this finding of fact.

Before the Director of Lands gave his consent to the transfer till respondent withdrew the application for consent. The consent was not given and the transfer did not take place. The appellant claimed, in this action, the return of his money, namely £195.

Section 41 of the Crown Lands Ordinance (Cap. 138) reads as follows:

"41. Any person who makes a false declaration in relation to ally matter or thing required to be done by this Ordinance, or by any regulation made thereunder, or who produces any false declaration or certificate, knowing the same to be false in any material particular, shall be guilty of an offence against this Ordinance."

The Court below held that the appellant could not recover the £195 he had paid the respondent because the transaction was tainted with illegality arising over the false certificate given the Director of Lands in the application to him for his consent to the transfer.

The appellant now appeals on the ground-

"That the learned Magistrate erred in law in holding that as the contract was tainted with illegality the moneys which passed were irrecoverable."

A second ground of appeal was abandoned at the hearing.

It is clear from the evidence in this case and the Crown Lands Ordinance that the agreement to transfer subject to the consent of the Director of Lands was not illegal, nor was the agreement that the consideration for that transfer should be £195 illegal, nor was the actual payment in advance of the £195 by the appellant to the respondent illegal. All that was held to be illegal was the false statement given in the application to the Director of Lands four consent.

In this connection one point appears to have been overlooked. This arises out of the wording of section 15 of the Crown Lands Ordinance (Cap. 138), of which the material part reads:

"(1) Whenever in nay 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' (hereinafter called a protected lease) it shall not be lawful for the lessee thereof to alienate or deal with land comprised in the lease or any part thereof, whether by sale, transfer or sublease 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..."

It appears, therefore, that it is only when a lease is expressly stated to be "a protected lease", that the consent of the Director of Lands to its transfer becomes necessary. If it is not "a protected lease" the consent of the Director of Lands does not appear to be necessary before it can be transferred or sold. There is no evidence in this case that the land concerned is held under a protected lease, in fact if the respondent only held a tenancy – at – will it is extremely unlikely that his title could be "a protected lease" at all. The consent of the Director of Lands would not, therefore, appear to have been required in this case under the Crown Lands Ordinance itself. The wording of section 41 is clear. It is only when a false declaration is in relation to anything "required to be done by this Ordinance" that the making of it becomes an offence. It was not affirmatively proved in the Court below, nor held as fact, that the respondent's title was held under "a protected lease". It could not, therefore, be said that the plaintiffs false statement of the consideration for its transfer to him, was made "in relation to anything required to be done by the Ordinance". However reprehensible the conduct of the appellant (and the respondent for that matter) may have been, it was in fact erroneously held that it amounted to a criminal offence. In my opinion it did not even amount to an "illegality tainting the contract".

Certainly no one was defrauded or intended to be defrauded by the incorrect statement of the consideration in the application to the Director of Lands for his consent to the transfer.

In these circumstances I am of the opinion that the Court below did err in holding that this contract was tainted with illegality and in holding that the money, which it had decided did in fact pass, was irrecoverable. The appeal is, therefore, allowed and judgment is entered for the plaintiff – appellant on this claim for £195.

I do not propose to make any order for the costs of the original hearing or the appeal in this case.

Appeal allowed. Judgment entered for appellant.

Solicitor for the appellant: H. A. L. Marquardt – Gray.

Solicitor for the respondent: R. L. Regan.

Hammett Ag. C.J.