Singh v Sumintra [1970] FJLawRp 29; [1970] 16 FLR 165 (13 November 1970)

[COURT OF APPEAL, 1970 (Gould V.P., Marsack, J.A., Tompkins J.A.), 29th October, 13th November]

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Native land-dealing in land-mother and son owners of native leasehold - arrangement following upon a panchayat- whether or at what stage it in land requiring consent of Native Land Trust Board-application for consent signed by purchaser purporting to be agent of vendor-lack of agential authority- validity of consent-Native Land Trust Ordinance (Cap. 115)ss 12,27-Native Land(Leases and Licences)Regulations (Cap 115) reg. 35 - Crown Lands Ordinance (Cap. 113).

Native Land Trust Board – application for consent to dealing in native leasehold- application made after agreement between parties implemented – application for consent signed by assignee of leasehold as purported agent of assignor – agential authority in fact lacking – Native Land Trust Ordinance (Cap.115) ss. 12, 27 – Native Land (Leases and Licenses) Regulations (Cap. 115) reg. 35 – Crown Lands Ordinance (Cap. 113).

A native leasehold was held by the respondent and her son equal shares. The cane contract with South Pacific Sugar Mills Ltd. was also in both their names. On the 27th May, 1961, a panchayat was held and a document (hereinafter referred to as " the panchayat agreement”) was then prepared and signed by the respondent. It amounted to an agreement for the sale of the respondent's half interest in the land and cane contract to the appellant for £500, of which the latter then paid £100, and the balance was payable at the rate of £100 per annum. As from the 27th May, 1961, the appellant took over full management of the cane and effected some improvements to the house; although he did not sign the panchayat agreement it was his case that he took over sole control of the farm and operated it as owner.

Under section 12 of the Native Land Trust Ordinance the prior consent of the Native Land Trust Board was necessary to any dealing with the land in question and no application for such consent was made until the 11^th June, 1965, when the appellant signed an application as the “duly authorised agent” of the respondent. The consent was given, but in the Supreme Court the trial judge held that the appellant acted without the respondent's authority and in the knowledge that such authority would not be given. The Supreme Court rejected the respondent's claim that she had never signed the panchayat agreement; it also dismissed the appellant's counterclaim for specific performance of the agreement on the ground that the Native Land Trust Board had been misled into granting the consent, which must be treated as non-existent. The appellant appealed to the Court of Appeal.

Held: 1. per GOULD V.P. and TOMPKINS J.A.: There was ample evidence to support the finding that the panchayat agreement amounted to a dealing in land within the meaning of section 12 of the Native Land Trust Ordinance. The dealing would not have been invalidated had the consent been applied for within a reasonable time and before the agreement was put into operation, but wherever the line must be drawn the full implementation of the agreement for four years before applying for the consent can only be in breach of the section; the dealing was therefore void.

2. Per GOULD V.P.: On a strict reading of section 12 in the light of its object an agreement for sale of native land would become void as soon as it was implemented in any way touching the land, without the consent having been at least applied for.

3. Per TOMPKINS J.A.: Once the agreement was acted on as a valid agreement for the sale of the respondent's interest in the leased land it became null and void for lack of consent.

4. Per GOULD V.P.: The dealing having become void before any application for consent was made the consent finally given (apart from any challenge to it on other grounds) could not revive what was by law a nullity.

5. Per MARSACK J.A. dissenting: (i) By reason of the absence of the signature of the appellant the panchayat did not put him under any obligation and he could not be sued on it. (ii) There was evidence which, accepted, indicated that the appellant considered the panchayat agreement as a mere preliminary to formal documents to be signed later. (iii) The acts of ownership by the appellant could not, in view of the mother-son relationship between the parties have the legal effect of binding the appellant to carry out the terms of the panchayat agreement (iv) The panchayat agreement could not become a dealing in land until it bound both parties to it. (v) There is no reason why an application for consent under section 12 of the Native Land Trust Ordinance cannot be made by a purchaser. (vi) It could not be said that the Trust Board was misled into granting the consent. (vii) The transaction was not unlawful as being in contravention of section 12 of the Native Land Trust Ordinance.

Appeal from a judgment of the Supreme Court ordering the appellant to render accounts and dismissing his counterclaim for specific performance.

K. A. Stuart for the appellant.
M. S. Sahu Khan for the respondent.
The facts are sufficiently stated in the judgements.
The following judgments were read:
GOULD V. P.: [13th November, 1970]-

Though the record of the evidence in this appeal it is a substantial one the appeal has been argued upon a limited basis and only a brief summary of the facts is necessary.

The appellant is the son of the respondent. They had become the owners of Native Lease No. 9488 of nearly sixteen acres of land mainly used for sugar growing, the cane contract being in the name of both parties. On the 27^th May, 1961, the following document (which has been referred to in the Supreme Court proceedings as “the panchayat agreement”) came into being:-

I, SUMINTRA father’s name Mata Din in the presence of these five members of Panchayat (Ragho Prasad, Raghwanand, Rattan Singh, Lala and Arjun Prasad) do sell to my son JAI KISSUN SINGH my share in Lease No. 9488 and Contract N0.2680. The price of the land is £500. 0. 0

1. AND in the presence of these five members of the Panchayat my son Jai Kissun Singh promises to pay me this sum of £500. 0. 0 in five years at a yearly instalment of £100. 0. 0.

2. AND in the presence of this Pachayat I, Jai Kissun Singh promise that after selling, I, as a duty of a son will provide my mother with food, clothes, all medical treatments, look after and carry out the funeral rites in full.

3. TODAY Jai Kissun Singh Panchayat in the presence of these five members of the Panchayat has paid to his mother the sum of £100 as a deposit for the land. The balance of 400 will be free of interest.

4. UPON receipt of the full payment I, Sumintra will transfer my share in Lease No. 9488 in the name of Jai Kissun Singh.

Witness: the signatures of the five Panchayat members –
1. Sgd. Ragho Prasad
2. Sgd. Lala
3. Sgd. Raghwanand
4. Sgd. Arjun Singh
5. Sgd. Rattan Singh.”

It was the appellant's case throughout that he paid the deposit of £100 and acted on this document as on an agreement to sell the respondent’s share of the land to him. The respondent, on the other hand, denied that she ever signed it and brought the action in the Supreme Court for a declaration that it was fraudulent, null and void. She was completely disbelieved on this issue by the learned trial Judge and this Court is not concerned with that question.

The land being native land, the appellant, through his solicitor, applied on the 11^th June, 1965, for the consent of the Native Land Trust Board for its consent to the panchayat agreement. The necessity for this arose out of section 12 of the Native Land Trust Ordinance (Cap. 115) which reads:-

"12-(1) Except as may be otherwise provided by regulations made hereunder, it shall not be lawful for any lessee under this Ordinance to alienate or deal with the land comprised in his lease or any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever without the consent of the Boar as lessor or head lessor first had and obtained. The granting or withholding of consent shall be in the absolute discretion of the Board, and any sale, transfer, sublease or other unlawful alienation or dealing effected without such consent shall be null and void:

"Provided that nothing in this section shall make it unlawful for the lessee of a residential or commercial lease granted before the twenty-ninth day of September, 1948, to mortgage such lease.

(2) For the purposes of this section 'lease' includes a sublease and ‘lessee’ includes a sublease."

The application for the consent was in the form prescribed under regulations 35 of the Native Land (Leases and Licences) Regulations, which indicates that the application is to be signed by the transferor, and a statement by the transferee is appended setting out (inter alia) any other land held by him. The respondent was in hospital at the time this application was made and the application was signed by the appellant as the appellant “duly authorised agent” of the respondent. The appellant signed the appended statement as purchaser in his personal capacity. In his judgment the learned trial Judge held that the transaction between the parties was a dealing in land within the meaning of section 12 and that the appellant had been "less than honest" in declaring himself the duly authorised agent of the respondent - he had no express or implied authority to do so and the relationship between the parties at the time were such that it must have been clear to him that she would not have agreed. The judge found that the Native Land Trust Board been misled into granting the consent which must be regarded as non-existent. He relied upon passages in the judgment of the Privy Council in Chalmers v. Pardoe [1963] 3 All E. R. 552 and found that the panchayat agreement had no legal validity.

The learned Judge made a declaration to that effect and ordered the appellant to render accounts. The appellant’s counter-claim for specific performance of the panchayat agreement was dismissed.

Before looking at the position in law in relation to section 12 of the Native Land Trust Ordinance, it is expedient to look at the factual position in more detail. The learned judge said that "the Panchayat Agreement coupled with what followed thereafter on the strength of that document clearly constitutes a dealing.”. He went to say that the purported sale was followed by the purchaser assuming full control of the farm as if he were sole owner and the sole farmer of the land. He made improvements to the house on the land on his own account. It was a term of the agreement that the appellant took over the existing debt though this was not stated in the panchayat agreement. The matter was not complicated by any question relating to the sufficiency of the panchayat agreement as a memorandum of the contract, as the Statute of Frauds was not pleaded in answer to the counter-claim; it is, of course, the appellant who sets up the agreement. There were two facts asserted, in the first case by the appellant, and in the second by both parties, which the learned Judge did not mention. The first is that the appellant claimed to have paid the respondent a further sum of £200 on account of purchase money on the 23rd April, 1965. This was evidenced by a receipt. The second was that two substantial sums of money were withdrawn from the joint bank account of the two parties (it seems at dates in 1965) and the respondent acquiesced in all but a few pounds being retained by the appellant. It is, of course, the appellant’s own case that he took over sole control of the farm and operated it as owner, and in spite of the complication that the respondent resided, for the most part, in the same house (as to which the paragraph 2 of the panchayat agreement may be relevant) there was ample evidence to support the learned judge’s finding.

The leading case upon the interpretation of section 12 of the Native Land Trust Ordinance is Chalmers v. Pardoe [1963] 3 All ER 552, a decision of the Privy Council on appeal from this Court. By a “friendly agreement” with the owner of native leasehold land, Mr. Chalmers had built a house and other buildings on part of that land and entered into possession. The consent of the Native Land Trust Board was never obtained. The Privy Council were of opinion that the transaction amounted to an agreement for a lease or sublease but even regarding it as a licence to occupy coupled with possession, their Lordships considered that a “dealing" with the land took place.

“ It is true that in Harnam Singh and Backshish Singh v. Bawa Singh, the Court of Appeal said the Court of Appeal said that it would be an absurdity to say that a mere agreement to deal with land would contravene s.12, for there must necessarily be some prior agreement in all such cases. Otherwise there would be nothing for which to seek the Board’s consent. In the present case, however, there was not merely agreement, but, on one side, full performance: and the Board found itself with six more buildings on the “land without having the opportunity of considering beforehand whether this was desirable. It would seem to their Lordships that this is one of the things that s.12 was designed to prevent.”

The first relevant aspects of that judgment, as I see it, is that it is not necessary that the agreement between the parties should have progressed to a state at which formal documents of lease or assignment had been executed before the transaction became a dealing requiring prior consent. That, having regard to the object of the section, is only common sense. Otherwise, a purchaser under agreement could remain indefinitely in possession and control, exercising the rights of full ownership and even protecting himself by caveat. In Denning v. Edwards [1960] 3 WLR 801 (an appeal from the Court of Appeal for Eastern Africa) the Privy council did make a distinction between "a transaction" and an “agreement for a transaction” but that was based upon the wording of the particular legislation being considered.

The second relevant aspect of the judgment in Chalmers v. Pardoe is that their Lordships, in the passage quoted above, expressed no dissent from what had been said in Harnam Singh and Backshish Singh v. Bawa Singh [1958-59] FLR 31, to the effect that there must necessarily be some prior agreement in all cases. They stated that in Chalmers v. Pardoe there had been full performance on one side. But did their Lordships, by making this distinction, intend to say that there must be full performance (by one party) in every case before a transaction became a "dealing"? I think not. Otherwise the abuse of indefinite possession without consent which I have referred to above could arise – perhaps with the result that the purchaser would be in unlawful occupation contrary to section 27 of the same Ordinance.

It may be of assistance to look at their Lordships’ approach to a related question in Denning v. Edwards (supra). I quote the following paragraph from p.806:-

“Subsection (1) requires the written consent of the Governor to an ‘agreement for any of the transactions’ set out in the subsection. They include a transaction of sale. It has been argued that the consent of the Governor must be obtained before the agreement is enter into and that subsequent consent is insufficient. Some form of agreement is inescapably necessary before the Governor is approach for his consent. Otherwise negotiation would be impossible. Successful negotiation ends with an agreement to which the consent of the Governor cannot be obtained before it is reached. Their Lordships are of opinion that there was nothing contrary to law in entering into a written agreement before the Governor’s consent was obtained. The legal consequence that ensued was that the agreement was inchoate till that consent was obtained. After it was obtained the agreement was complete and completely effective.

It is to be observed that in clause 4 of the agreement the parties provided that ‘The purchase and sale hereby effected is’ ‘expressly made subject to the consent thereto of the Land Control Board and the Governor of the said Colony’. In the event of such consents being refused then this agreement shall become null and void and any payment made by the purchaser shall thereupon be refunded to them but without interest.’ Thus the parties had every regard for the provisions of subsection (1) of section 88 and it would be remarkable if they could not negotiate in the manner in which they did.”

The wording of the subsection there relevant was merely - “nor shall any person enter into any agreement for any of the transactions referred to in this subsection without the written consent of the Governor”. Even apart from any weight which their Lordships may have attached to clause 4 of that agreement the legislation the legislation was much less strong than the unequivocal statement in section 12 of the Native Land Trust Ordinance that it shall not be lawful to deal etc. without the consent first had and obtained.

Reading these Privy Council decisions together I am of the opinion that, dealing with the Fiji legislation, their Lordships did not intend, by their reference to full performance in Chalmers v. Pardoe, to say that no consent would ever be required before that stage was reached. If Mr. Chalmer’s house had been only half built the result of the case would, I fully believe, have been the same.

The case of Court Bros. (Furnishers) Ltd. v. Sunbeam Transport Ltd. [1969] 15 FLR - was a case on a similar provision in the Crown Lands Ordinance (Cap. 113). In his judgment in that case Hutchison, J.A. said:-

"Surely, with an agreement for sale and purchase, intended to be followed by a transfer, it is after the agreement has been entered into and before the transfer is made that the Director has to consider the matter and grant or withhold his consent."

“Of course, it would be different if possession were to be given on the agreement for sale purchase and the agreements were to be relied on as the purchaser’s title to the land so to speak.”

If an agreement is signed and held inoperative and incohate while the consent is being applied for I fully agree that it is not rendered illegal and void by section 12. Where then, is the line to be drawn? I think on a strict reading of section12 in the light of its object, an agreement for sale of native land, would become void under the section as soon as it was implemented in any way touching the land, without the consent having been at least applied for. A clause in the agreement such as that in Denning v. Edwards might have an effect on the situation according to its tenor.

In the present case, even if any question of degree is involve, I am satisfied that possession and control for four years, together with the payments made and the other matters which I have mentioned above, without applications for consent, go far beyond any line which could reasonably be drawn. There was, therefore, a dealing which, in the absence of the consent of Native Land Trust Board first had and obtained, was unlawfully entered into, and was null and void. I think this is one of those hard cases in which ignorance of the law does not assist the appellant.

I have discussed this question in greater detail than did the learned trial Judge, who, was of the opinion that the consent actually given must, in view of the way it was obtained, be treated as non-existent. On the view I take of the case I do not need to express any concluded opinion on that question. I doubt if the application made could be looked upon as an application by the purchaser. It was not so framed. Notwithstanding some words of their Lordships in Chalmers v. Pardoe which appear to indicate the contrary I would, with respect, be very reluctant to say that a consent given by the Board on the application of a purchaser all being disclosed, was not a valid one. In my experience in this Court I know of one case (Fong Lee v. Mitlal and Another [1966] 12 FLR 4 in which it has been so given but the consent was not challenged on that ground. It may well be that in the circumstances of the present case the learned trial judge was justified in regarding the consent as a nullity, but, as I have said, I express no final view on that.

Even if the consent is regarded as having been validly obtained I do not think that assists the appellant. Counsel's main argument was that the consent, once given, cured all defects. He suggested that there was a severance of the first part of section 12 in which it was declared unlawful to deal with native land, from the last part, in which there was provision for avoidance. He emphasized that the granting or withholding of consent was in the absolute discretion of the Board, and suggested that if the Board exercised its discretion in favour of consent there could be no avoidance.

Counsel did not in argument challenge the finding that there was a dealing in land, but the point of time at which the dealing took place, with reference the words in the subsection "first had and obtained" was not referred to by the learned judge. It follows from what I have said earlier that that point of time was reached long before the application for consent was made on the 11th June, 1965. At that time also the agreement became unlawful, null and void. There was, therefore, nothing upon which the Board could exercise its discretion; nothing to which to consent. I do not think that by an administrative granting of consent the Board could revive what was by law already a nullity.

For these reasons, in my opinion, the dealing between the parties to the action was and remained null and void and I would dismiss the appeal. Even though the respondent was not allowed costs in the Supreme Court, my view of the lack of merit in her case is such that I would make no order for the costs of the appeal. That being the opinion of a majority of the Court, the appeal is accordingly dismissed with no order for costs.

This is an appeal against an order declaring a Panchayat Agreement to be unlawful and unenforceable as being in contravention of section 12 of the Native Land Trust Ordinance, Cap. 115; and declaring that the plaintiff in the Court below to be the owner of an undivided half share in land of which her son was the owner of the other undivided half share, and ordering accounts.

The facts are fully set out in the judgment appealed from and I do not propose to repeat them here. The learned judge in the Court below held the evidence of the plaintiff, who was the mother of the defendant, to be totally unreliable and he accordingly disregarded her evidence entirely. He held further that the Panchayat Agreement set out below was a genuine document. Practically the whole question to be decided on this appeal is whether the Panchayat Agreement is invalid having regard to section 12 above-mentioned. A copy of the Agreement is as follows:-

"I, SUMINTRA father’s name Mata Din in the presence of these five members of Panchayat (Ragho Prasad, Raghwanand, Rattan Singh, Lala and Arjun Prasad) do sell to my son JAI KISSUN SINGH my share in Lease No. 9488 and Contract No. 2680. The price of the land is ₤500.00.

1. AND in the presence of these five members of the Panchayat my son Jai Kissun Singh promises to pay me this sum of ₤500.00 in five years at a yearly instalment of £100.00.

3. TODAY Jai Kissun Singh in the presence of these five members of the Panchayat has paid to his mother the sum of £100 as a deposit for the land. The balance of £400 will be free of interest.

4. UPON receipt of the full payment I, Sumintra will transfer my share in Lease No. 9488 in the name of Jai Kissun Singh.

Written by R. Prasad
27/5/61
4/-Stamp
27/5/61 R.P.Sumintra
H.L.T.M
(Her left thumb mark)

Witness: the signature of five Panchayat members

1. Sgd Ragho Prasad
2. Sgd. Lala
3. Sgd Raghwanand
4. Sgd Arjun(Singh) Prasad
5. Sgd Rattan Singh.

It will be noted that it is dated 27th May, 1961. It will be noted also that it is signed by Sumintra, the mother of the appellant, but not by the appellant Jai Kissun Singh.

“12 (1) Except as may be otherwise provided by regulations made hereunder, it shall not be lawful for any lessee under this Ordinance to alienate or deal with the land comprised in his lease or any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever without the consent of the Board as lessor or head lessor first had and obtained. The granting or withholding of consent shall be in the absolute discretion of the Board, and any sale, transfer, sublease or other lawful alienation or dealing effected without such consent shall be null and void:

Provided that nothing in this section shall make it unlawful for the lessee of a residential or commercial lease granted before the twenty-ninth day of September, 1948, to mortgage such lease.

(2) For the purposes of this section ‘lease’ includes a sublease and “lessee” includes a sublessee.”

The consent of the Board was not sort by the appellant until 11th June, 1965, and the consent was endorsed on the Agreement on 27th July, 1965. The question immediately arises as to whether the Panchayat Agreement constitutes an alienation or dealing in the land comprising the lease. The evidence shows clearly that the son was present at the writing out and the signing of the Agreement, and verbally agreed to all its terms. The Panchayat meeting was actually at the appellant’s own house. I think that it is quite clear that there was a verbal agreement on his part to buy his mother’s undivided half share on the term set out in the Agreement. The appellant immediately commenced to act under the Agreement as if, by the agreement, he had become the sole beneficial owner of the lease and cane contract. It is, I think, clear that neither he nor his mother knew that any consent to the agreement of sale was necessary.

In evidence he said that as from May, 1961 he regarded himself as the sole owner, subject only to payment of the purchase price. He regarded himself as entitled to the whole of the sugar proceeds. He executed improvements to the building on the property without reference to his mother. He maintained his mother in accordance with Clause 2 of the Agreement, and he undertook responsibility for paving off the crop liens. This position went on from the date of the Agreement in 1961 for some four years until he applied for consent on 11th June, 1965. Thus the consent he then obtained was dated four years after he had verbally agreed to buy his mother’s half share and had put into operation and acted on the Agreement.

Mr. Stuart, for the appellant, submitted that the approval on 27th July, 1965, on the Agreement by the Native Land Trust Board cured the lack of previous consent and converted what had previously been an invalid agreement into a valid one.

“without the consent of the Board as lessor or head lessor first had and obtained.”

However in Harmon Singh and Anor v Bawa Singh [1958] 6 FLR 31, the President of the Court of Appeal said at 41:-

“That, in my view, indicates without doubt that it is anticipated that there must be a written dealing, or an agreement to deal with land in question, which is required to be submitted for consent. Were it not so, an absurd position would arise whereby a written agreement, being null and void and so being a complete nullity from the time it was executed could not be submitted to the board at all. ... I have no doubt that the words in section 12 ‘shall be null’ and ‘void mean shall be inoperative unless and until the consent of the board is obtained’.”

Consequently, I do not think that the Panchayat Agreement of 27th May, 1961, was null and void from the date of its execution; and that, had consent been applied for before the Agreement was put into operation, and within a reasonable time, the obtaining of consent would have validated it. But once the agreement was acted on as a valid agreement for the sale of the plaintiff’s interest in the leased land it became null and void for lack of consent. Here, the Agreement was acted on for four years before consent was applied for. If such a consent were to be held to be retrospectively effective the whole purpose of the legislation would be defeated.

As to whether a verbal agreement can be a “dealing” within the meaning of section 12, the Privy Council has held, in the case of Chambers v Pardoe [1963] 3 ALL ER 552, that this can be so. Sir Terence Donovan at 557 said:-

“....The Court of Appeal held, as their Lordships have already indicated, that the least legal effect which could be given to the family arrangement was that of a licence to occupy coupled with possession. Their Lordships think that the matter might have been put higher....In their Lordship’s view an agreement for a lease or sublease in Mr. Chalmer’s favour could be reasonably be inferred from Mr. Pordoe’s evidence. Even treating the matter simply as one where a licence to occupy coupled with possession was given, all for the purpose....of erecting a dwelling house ....it seems to their Lordships that, when this purpose was carried into effect, a dealing with the land took place.... And since the prior consent of the Board was not obtained it follows that under the terms of section 12 of the Ordinance, Cap. 104, this dealing with the land was unlawful. It is true that in Harnam Singh’s case the Court of Appeal said that it would be an absurdity to say that a mere agreement to deal with land contravene section 12, for there must necessarily be some prior agreement in all such cases. Otherwise there would be nothing for which to seek the Board’s consent. In the present case, however, there was not merely agreement, but on one side, full performance.”

In that case the whole agreement was verbal. In the instant case the agreement on the part of the appellant only is verbal; but the appellant has acted on the agreement for some four years without obtaining consent. By so doing, in my view, he made the Panchayat Agreement into a dealing; and as he failed to get consent during that period of four years, there is no escape from holding that this dealing, without such consent, is null and void under the plain terms of section 12.

There is, however, a further point, in that he obtained consent in 1965 under circumstances which that render that consent of extremely doubtful validity. I refer to the fact that in the application for consent the appellant signed on behalf of the respondent, his mother , as her duly authorised agent; whereas, in his evidence, he agreed that he had no express authority from her so to sign and that she was too ill to give it. But the learnt Judge also finds as a fact that his mother would not, at that time, have agreed to apply for consent, and that appellant knew this.

In the result I agree with the conclusion reached by the learned trial Judge that this appeal should be dismissed. In the circumstances, however, of the mother having gone back to her solemnly expressed word, I do not think she is entitled to costs. I would order that each party bear its own costs.

This is an appeal against a judgement of the Supreme Court holding that an agreement dated 27th May, 1961, and signed by Respondent, was unlawful and unenforceable as being in contravention of Section 12 of the Native Land Trust Ordinance Cap. 115; and that appellant was not entitled to a decree of specific performance of the agreement for the transfer to him of Respondent’s one-half share in the land concerned.

Appellant is the son of Respondent, whose husband died in 1960. The land in issue in this appeal comprises slightly less than 16 acres held under lease No. 9488 from the Native Land Trust Board. The lease is in the names of Appellant and Respondent as tenants in common in equal shares. The land is covered by cane contract No. 2680 with South Pacific Sugar Mills Limited, and that also is in the name of both parties.

On the 27th May, 1961 what is referred in the judgment as the “Panchayat Agreement” was signed by Respondent, but not by Appellant. The signature of Respondent was witnessed by of the five Panchayat members. This agreement is in the following term:

“I, SUMINTRA father’s name Mata Din in the presence of these five members of Panchayat (Ragho Prasad, Raghuwanand, Rattan Singh, Lala and Arjun Prasad) do sell to my son JAI KISSUN SINGH my share in Lease No.9488 and Contract No. 2680. The price of the land is £500.0.0.

1. AND in the presence of these five people members of the Panchayat my son Jai Kissun Singh promises to pay me this sum of £500.0.0. in five years at a yearly instalment of £100.0.0.

2. AND in the presence of this Panchayat I, Jai Kissun Singh promised that after selling, I, as a duty of a son will provide my mother with food, clothes, all medical treatments, look after and carry out the funeral rites in full.

3. TODAY Jai Kissun Singh in the presence of these five members of the Panchayat has paid to his mother the sum of £100 as a deposit for the land. The balance of £400 will be free of interest.

4. UPON receipt of the full payment I, Sumintra will transfer my share in Lease No. 9488 in the name of Jai Kissun Singh.”

When the Panchayat agreement was signed, Appellant and Respondent were living in the family house standing on the land in question, and they continued to do so at all material times. Appellant, however, after 27th May, 1961 took over the full management of the cane plantations on the land. He also effected some improvements to the house.

Payments amounting to £300 or £350 were made at different times by Appellant to his mother; and on 25th July, 1966 the balance, which Appellant stated to be then £150, was tendered to the solicitor then acting for Respondent. Buy this time relations between the parties had become severely strained, and Respondent refused to sign the transfer pursuant to the Panchayat Agreement.

No application for the consent of the Native Land Trust Board to the transaction was made until 11th June, 1965. The Board notified its consent on the 7th July 1965. The application for consent was made by Appellant “as agent for his mother who is in hospital seriously ill.”.

On 23rd July, 1967, Respondent issued a writ against Appellant praying inter alia, for a declaration that the document dated 27th May, 1961, was fraudulent and void on the grounds:

(b) that no consent of the Native Land Trust Board was ever obtained to the transfer of the lease.

The learned trial Judge found as a fact that the Panchayat agreement was a genuine document, and in that respect the sworn evidence of the Respondent was totally rejected.

The learned trial Judge further held that the Panchayat Agreement was an unlawful and unenforceable document, being made in contravention of section 12 of the Native Land Trust Ordinance, Cap. 115. It is against that judgment that this appeal is brought.

(1) Is the document referred to as the Panchayat agreement a “dealing in land” within section 12 of the Native Land Trust Ordinance, as from the date on which it was signed by Respondent;

(2) If not, did it later become such a dealing in land because of the conduct of the parties, and, if so, when;

(3) Does the approval of the N.L.T.B. given on 7^th July, 1965 validate the transaction between the parties, the first step in which was the ‘Panchayat Agreement’ executed by Respondent on 27^th May, 1961;

(4) If so, is the approval of the Native Land Trust Board effective, notwithstanding that it was based upon an application by Appellant purporting, without direct authority from Respondent, to act as agent for Respondent.

The determination of the first question is a matter of some difficulty, particularly as the relevant circumstances are exceptional and differ materially from the facts in other cases in which the Court has had to consider the interpretation of sec. 12. The leading authority on the subject of dealing in land in this connection is the judgment of the Privy Council in Chalmers v. Pardoe [1963] 3 All ER 552. In that case there was no written agreement between the parties; but merely a "friendly arrangement" whereby Chalmers was permitted to enter on to portion of Pardoe's land, held under a Native Land Trust Board lease, and to erect certain buildings on it. This was held to be a dealing in land, even on the basis that it was a mere licence to occupy coupled with possession. At p. 557 the Lordships differentiated the facts in that case from those in Harnam Singh v. Bakshish Singh and Bawa Singh [1958-59] FLR 31 at. p. 41, in that in Chalmers v. Pardoe there had been " not merely agreement, but, on one side, full performance." The basis of the decision of this Court in Harnam Singh's case was that a mere preliminary agreement was not in itself a dealing in land; that there must necessarily be some such preliminary agreement before there is anything to submit to the Native Land Trust Board for approval.

In the present case it becomes necessary to examine the provisions of the Panchayat agreement closely. It is to be noted that although it consents leasehold land, the acceptance of which involves obligations on the part of any assignee, the Panchayat agreement was not signed by Appellant. Appellant is not even bound by the agreement to pay any moneys, or in fact to do anything at all. A document constituting a dealing in leasehold land must, in my view, be one which binds both parties to it, the intended transferee as well as the transferor. Here because of the lack of his signature, the so-called agreement does not, in the absence of anything else, place the intended transferee under any obligation whatever. It would not be open to Respondent to sue Appellant on the document taken by itself, even if it had been made subject to the consent of the Native Land Trust Board and that consent had been given. The so-called agreement is in its terms merely a promise by Respondent that she will at some future date - transfer her undivided half share in the lease to her son, if by then he has paid her certain moneys and performed certain services for her. In my view, this document cannot, standing by itself, be regarded as a dealing in land as from 27th May, 1961. The facts are clearly distinguishable from those upon which the decision in Chalmers v. Pardoe was based, in that there was no full performance on either side. A year before Appellant had made or tendered the payment entitling him to call on Respondent for a transfer to him of her interest in the lease, an application had been made for the approval of the Board and the Board's consent had been granted.

The reasons given by the learned trial Judge for holding that the dealing set out in the Panchayat Agreement is in clear contravention of section 12 of the Native Land Trust Ordinance, are in these words:-

"The Agreement purports to sell the plaintiff's half share without the consent of the Native Land Trust Board. The Agreement was made without the prior consent of the Board, nor was it made subject to consent of the Board. The purported sale was followed by the purchaser assuming full control of the farm as if he were sole owner and the sole farmer of the whole land. In fact, he made improvements to the house on the land on his own account as if he were the sole owner."

Section 12(1) of the Native Land Trust Ordinance makes it unlawful to "deal with the land" comprised in the lease or any part thereof without the consent of the Board first had and obtained. If then the Panchayat Agreement in itself is a dealing in land, it is unlawful ab initio unless the consent of the Board is obtained to the dealing comprised in it prior to the signing of the document. Leaving out of consideration for the moment the acts specifically performed by Appellant indicating that he regarded himself as sole owner of the property, I am not convinced that what is called the Panchayat Agreement was, at the time of the signing of it by the mother, such a dealing in land as would require the prior consent of the Native Land Trust Board.

The learned trial Judge does not, as I read his judgment, go so far as to say that. His ruling on the subject is in these words:

"In my view, the Panchayat Agreement, coupled with what followed thereafter on the strength of that document, clearly constitutes a dealing within the meaning of Sec. 12 of the Native Land Ordinance."

If what took place afterwards was necessary to convert that document into a dealing in land, then at the time of signing it was not illegal; what must be determined is at what later stage the consent of the N.L.T.B. became necessary in order to validate the transaction. As Hutchison, J.A. says in the judgment of this Court in Court Bros. (Furnishers) Ltd. v. Sunbeam Transport Ltd. [1969] 15 FLR:-

"Surely with an agreement for sale and purchase intend to be followed by a transfer, it is after the agreement has been entered into and before the transfer is made that the Director has to consider the matter and grant or withhold his consent".

That was a case in which an option to purchase a Crown leasehold property, given for valuable consideration, was held not to be a dealing in land requiring the consent of the Director of Lands under a statutory provision virtually identical with section 12(1) of the Native Land Trust Ordinance. Hutchison, J.A. goes on, in the course of his judgment, to say:-

"Indeed, I think that, even if the option had been exercised before his consent was sought, the consent could still have properly been obtained prior to the transfer."

The acceptance of an option would result in a contract binding both parties and would thus be stronger than the Panchayat Agreement which bound one party only.

If my view as to the legal effect of the Panchayat document at the time of signing is correct, it becomes necessary to examine the evidence as to the subsequent conduct of the parties for the purpose of ascertaining at what stage, if any, it became a dealing in land. In this connection it is perhaps significant that Appellant states in evidence that his reason for not signing the Panchayat document was that -

"after I had paid her £500 we would go to a solicitor and proper transfer documents would be drawn and I would execute an agreement in her favour until she dies."

If this evidence is accepted, it would indicate that Appellant at least considered the document in question as a mere preliminary to the formal documents which would be executed later; and, following the reasoning of Hutchison J. in the Court Bros. case, the Court could properly hold that it would be those subsequent formal documents which would be illegal and void if the consent of the• N.L.T.B. thereto had not been first had and obtained.

In the Court Bros. (Furnishers) Ltd. case Hutchison J.A. qualifies what he says in the passage first above cited by adding the following sentence in parenthesis:

"(Of course, it would be different if possession were to be given on the agreement for sale and purchase, and the agreement were to be relied on as the purchaser's title to the land so to speak.)"

That qualification, to my mind, does not apply here. I do not think it can be said that Appellant relied on the Panchayat document as his title to the land; he makes it clear in his evidence that he was looking to subsequent formal documents to give him title. And in this case possession was not given as a consequence of the Panchayat agreement.

In my opinion the "acts of ownership" exercised by Appellant after his mother had signed the Panchayat document could not necessarily be held to have the legal effect of binding him to carry out those terms of the Panchayat document which set out the conditions upon which his mother would be prepared to transfer her undivided half share in the lease to appellant. The position would have been entirely different if the proposed transferee had been a stranger entering on the property from outside. Here, it was a case of an elderly mother and a son living together - as they had done for some years - on a property owned by both of them, with the son necessarily managing the cane-farming operations carried out on the lands concerned.

The question that arises, in the view I take of the case, is this: At what stage was it necessary for the consent of the Board to be obtained to the transaction in order that it should not be tainted with illegality? As I have already said, I do not think it was incumbent on the mother to apply for and obtain that consent before she signed the promise contained in the Panchayat document. It became necessary only when the party who previously had not been bound by the document, finally accepted his obligations under it and took the necessary steps to have the uninvited half interest of his mother formally transferred to himself. It is common ground that the balance of £500, namely £150, was tendered to Respondent’s solicitors together with a transfer of the lease for signature by respondent on 25th July, 1966. It is also common ground that over a year previously application had been made by Appellant to the Native Land Trust Board for consent to the transfer, and this consent had been given on the 7th July, 1965. The letter forwarding the application for consent disclosed that the “Panchayat Agreement”, a copy of which was forwarded with the application, had never been presented for consent.

It was contended by Mr. Stuart that the gaining of the consent by the Board in July, 1965 “covered all pre-existing defects”. In the view I take of the matter I do not think it necessary to rely on any such argument or to hold, as Counsel submitted, that the granting of an ex post facto consent validated the transaction.

The application for consent made full disclosure of the facts concerning the signing of the Panchayat document and the lapse of time between the date of signing and that of the application for consent. As is pointed out in section 12(1), the granting or withholding of consent shall be in the absolute discretion of the Board. The fact that, with a full knowledge of the facts, the Board gave its consent to the transfer of the mother’s one-half share in the leasehold property to her son indicates that, at least in the opinion of the Board, the evil which section 12 was designed to cure was not present in this case.

Put shortly, I am of the opinion that the Panchayat document could not be held illegal ab initio on the ground that the consent of the Native Land Trust Board to it had not been obtained prior to the signature to it by Respondent; that the time for applying for consent was prior to its becoming a dealing in land binding both parties to it, and a formal document setting out particulars of the transfer was to be prepared and signed; and that prior to that time the Native Land Trust Board, with a full knowledge of the facts, granted formal consent to the transaction.

Accordingly, in my view, Respondent is not entitled to rely on the provisions of section 12(1) of the Native Land Trust Ordinance to refuse to carry out the obligations she entered into when she signed the Panchayat document, unless the 4th question set out earlier in this judgment is answered in the negative.

That question calls for consideration the further finding of the learned trial Judge, set out in his judgment in these terms:-

“The purchaser, i.e. the defendant, had no authority to obtain consent on behalf of the plaintiff, consequently the endorsement on the Panchayat Agreement is of no effect. I am satisfied that the Native Land Trust Board would not have granted consent to such a dealing unless the owner herself applied for consent or someone acting strictly on authority applied for consent on her behalf.”

It is a little difficult to understand the basis for his finding that the Board would not have granted consent except upon the application of the owner herself or her duly appointed agent. It is true that in Charmers v Pardoe [1963] 3 ALL ER 552 their Lordships of the Privy Council said at p. 554:-

“The Board could act only on application made in proper form by Mr. Pardoe or someone acting on his behalf.”

I do not take that as laying down a definite rule that in no circumstances is the Board entitled to grant its consent to a dealing in land except upon the application of the vendor. In Court Bros. (Furnishers) Ltd. v. Sunbeam Transport Ltd. (supra) the application for the Board’s consent was made by the purchaser; the consent was granted on the application; and this Court decided that the dealing covered by the consent so obtained was a valid one. Similarly, in Fong Lee v Mitlal and Anor [1966] FLR 4 the application for the consent of the Board, which was granted, was made by the purchaser, who was held by this Court entitled to specific performance of the contract.

It is true that the primary obligation to obtain the Board’s consent to a dealing lies on the vendor; but I can see no reason why such application should not be made by the purchaser. No objection was taken, in the Court Bros. Ltd. and Fong Lee cases cited above, to the grant of the Board’s consent on the application of the purchaser. Accordingly, I am of opinion that if Appellant had applied in his own name for the consent it would have been competent for the Board to grant it.

There is a further finding by the learned trial Judge that the Native Land Trust Board must have been misled into granting the consent, which must be regarded now as non-existent. With respect, I feel that this finding is open to objection. Appellant, with the express or implied approval of his mother, had been managing the property and everything connected with it for some time. When the solicitors advised him that the approval of the Native Land Trust Board must be sought, Respondent was in hospital and unable to make any application herself. In these circumstances, I think the son was justified in considering that he was entitled to apply in his mother’s name. His evidence on the point is this:

A. Because I was working the whole land and I was looking after my mother and she was in a very bad condition in the hospital, and I signed on the advice of my solicitors.”

It cannot, in my view, be said that the appellant tried to mislead the Board, or that the Board was misled into granting the consent. I am satisfied that the Board was put in possession of the facts the Board was required to know in determining whether or not to grant consent.

For this reason I would hold that the transaction involving the transfer to appellant of his mother’s undivided half interest in the leasehold property was not unlawful as being in contravention of section 12 of the Native Land Trust Ordinance. Accordingly I would allow the appeal, set aside the judgment of the Supreme Court and remit the case to the Court to make an order granting specific performance on the Agreement to transfer to Appellant one-half interest in Native Lease No. 9488.

Fiji Law Reports

Singh v Sumintra [1970] FJLawRp 29; [1970] 16 FLR 165 (13 November 1970)