Surji v Native Land Trust Board [1997] FJLawRp 22; [1997] 43 FLR 138 (19 June 1997)

[1997] 43 FLR 138

HIGH COURT OF FIJI ISLANDS

SURJI

v

NATIVE LAND TRUST BOARD

[HIGH COURT, 1997 (Scott J) 19 June]

Appellate Jurisdiction

Native Land- expiry of native lease- dwelling house erected on the land- whether Native Land Trust Board may be compelled to purchase it- Native Land (Lease and Licences) Regulations (Cap. 115 - 1967 Edn)- Native Land Trust (Leases & Licences) Regulations (LN 98/1984)

Practice: Civil- Magistrates’ Courts- set off or counterclaim exceeding the Court’s jurisdiction-how to be dealt with-Magistrates’ Courts Act (Cap 14) Section 46.

The tenant of an expired native lease sought compensation for an irremovable dwelling left on the land. The High Court HELD: (i) that the Regulations governing the constructionhe dwelling required it to t to be removable and therefore the tenant was not entitled to compensation for its loss and (ii) that the suggestion that the Magistrate exceeded his jurisdiction in dealing with the claim at all should have been raised in the Magistrates’ Court as a preliminary objection.

Caseed:

Jones v /i>n (1849) 18 LJQB 8

Pe v H/i>&#a href=href="http://www.paclii.org.vu/cgi-bin/Lawn/LawCite?cit=%5b1925%5d%201%20KB%20573" t73" title="View LawCite Record">[1925] 1 KB 573

Windsor v Dunford [1848] EngR 625; (1848) 12 QB 603<160;
Apbr>Appeal to the High Court from the Labasa Magistrates’ Court.

M. Sai> for ther the Appellant
N. Nawaikula for the Respondr>
;
ott J:

On 1 July 1966 the Appe Appellant’s husband, Sukh Deo, now deceased, entered into a lease with the Respondenely N Leas 13150. The duration of the lease was 18 yea8 years and accordingly it was to expire, ire, if noif not renewed, on 1 July 1984.
<24 January 1984 Sukh Deo Deo applied for the lease’s renewal. The procedure applicable to the renewal of this lease was procedure set out in Regulations 10, 11, 12 and 6-9 of the Native Land (Lease and Licences)nces) Regulations (Cap 115 - 1967 Edn wrongly described in the lease as Cap 86). Under Regulation 12 an applicant has the right to continue to occupy the land in question until a decision on the application has been made by the Native Land Trust Board (the Board). Sukh Deo and his family continued to reside on the land.

On 17 February 1987, over 3 years after Sukh Deo had lodged his application, the Turaga ni Mataqali and 8 other members of the Mataqali Vunicaukuro wrote to the Board objecting to the lease’s renewal. They stated the Mataqali was short of l of land and that they wanted Sukh Deo’s land back for themselves.

On 14 July 1987 the fird finally replied to Sukh Deo’s 1984 application. By this time Sukh Deo had died and his widow’s Solicitor were ed that the lease would not be renewed. The Appellant was given 6 months to vacate the land land.

On 2 February 1989 thedBoard commenced proceedings in the Labasa Magistrates’ Court. The Particulars of Claim (page 9 of the record) which did nfer to the history of the Appellant’s occupation of the land merely sought possessionssion on the ground that the Appellant’s occupation was without “Colour of Right”.

A Defence and Counter Claim were filed on 18 March (pages 13 & 14 of the record). The exact logic of the Defence is a little hard to understand but appears to depend on the Appella217;s wish to have the expired lease renewed. The Counterclterclaim is in my view of greater importance to this Appeal centering as it does on a “large concrete dwelling house” which Sukh Deo had erected on the land.

In his written submn fion filed in the Magistrates Court Mr. Sadiq did not press the Defence but instead argued that Sukh Deo, having constructed touse on the land which his widow (the Appellant) was now being asked to vacate, the Appellapellant should receive adequate compensation from the Board for the house and other fixed improvements to the land the value of which he together assessed at $40,000.

The Resident Magistrate rejected Mr. Sadiq’s submission. He referred to the Native Land Trust (Leases & Licences) Regulations (LN 98/1984) which had revoked the earlier Regulations when introduced during 1984. How far the latter Regulations applied to Sukh Deo’s lease I am not absolutely sure (the point was not raised by Mr. Sadiq and apart from filing a written submission neither Mr. Nawaikula nor any other representative of the Board took the trouble to take any active part in the Appeal) but such differences as there are between the two sets of Regulations do not, as I see it, materially affect the matter which I have to decide.
should be remova160;;(see Condition 16 of the lease and Regulation 34 (b) of the 1967 and 1984 Regulations). In this case the dwelling hbeing “large concrete” it was obviously not in any reasonably practical sense rnse removable except as virtually worthless rubble after having being pulled down.

Mr. Sadiq d that under nder condition 16 (v)of the lease the Board could elect to purchase the dwelling house rather than seek its removal. I agree. What I cannot however agree with is the proposition the Board can be come compelle0;to/i>to purchase a dwelling house which as a result of the decision of the lessee freely taken is as a matter of fact not removable. There is nothing in the Act, in the Regulations or in the lease to this effect. Having arrived at this view of the meaning and effect of condition 16(v) of the lease and of Regulation 34 (b) (v) of the 1967 and 1984 Regulations I do not think that the arbitration procedure contained in Regulations 13 and 19 of the 1967 and 1984 Regulations respectively have any application.

While one is bound te cave considerable sympathy with the Appellant who now finds herself homeless and landless I can find no basis either in law or in equity for her to receive any compensation. On the facts I cnd no scope for the applicaplication of the doctrine of unjust enrichment. If the dwelling house when constructed had complied with the requirements of the lease and Regulations and had been removable then at least the loss of the house would have been avoided. It may also be noted that the Board had offered the Appellant alternative land to which this removable house could have been moved. In my view the Resident Magistrate reached the right conclusion on the arguments presented before him.

There iinal matter, rai, raised for the first time on Appeal: it is the question of the Resident Magistrate’s jurisdiction.
&#br>Mr. Sadiq suggested (ground 1 of the Petition of Appeal) that the Resident Magistrate erte erred in entertaining this Action at all in view of the fact of the value of the Counterclaim ($40,000) exceeded his jurisdiction. This raises the interesting question of how a Magistrates’ Court should proceed when a claim within its jurisdiction is met with a Set-off or Counterclaim outside its jurisdiction.

So far as I can determine the Magistrates’ Court Act (Cap 14 as amended by Decree 35/88) does not directly answer the question but one general principle of practice becomes immediately apparent and can first be death. It is this: alleged wand want of jurisdiction should always be raised at the commencement of the proceedings and while a total want of jurisdiction cannot be cured by consent of the parties (Jones v Owen (1849) 18 LJQB 8) a part so conducts himss toss to his rights cannot later rely on want of jurisdicisdiction tion on appeal (see Windsor v Dunford(1#160;#160;12 QB 603 and;Pringle v Hales [1925] 1 KB 573). In the present case want of juri jurisdiction was not raised in the Magistrates’ Court at all and I have some doubt as to whether it could properly be raised on appeal.

In the absence of aiculticular procedural provision in the Magistrates’ Court Act or the Rules thereto Magistrates’ Courts are to be guided by the law and practice fortime being observed in England in the Country Courts and Cond Courts of summary Jurisdiction (Cap 14- Section 46). Sections 32 and 33 (1) (a) (ii) of Cap 14 and Sections 42 (1)(c) and 43 of the English County Courts Act 1984 are relevant. In my view a Defendant alleging that his Set-off or Counterclaim involves matters beyond the jurisdiction of the Magistrates’ Court must raise this objection as a preliminary matter with a view either to transfer under Section 33 (i) (a) (ii) or to possible enhancement of the Resident Magistrate’s jurisdiction under Section 19 of the same Act.

Whi is tempting to sugg suggest that section 46 could be used as a vehicle to import section 43 of the English Act into Cap 14 I am satisfied on reflection that itot. Even however if it is accepted that the Counterclaim exim exceeded the Resident Magistrate’s jurisdiction it was not a Defence to the claim foression sion but was a free-standing Counterclaim and therefore there was nothing to prevent the Resident Magistrate making the order for possession which the Board sought.

For the reaslready set set out I am satisfied that in fact the Counterclaim was misconceived in law and that the Resident Magistrate, albeit probably acting beyond his jurtion was correct in the conclusion he reached. In exercise cise of the powers conferred on me by Order VI Rules 18 and 19 of the Magistrates’ Courts Rules I reaffirm the Resident Magistrate’s Judgment and dismiss this Appeal.

(Appeal dismissed).