Native Land Trust Board v Oddyar [2000] FJLawRp 68; [2000] 1 FLR 305 (24 November 2000)

[2000] 1 FLR 305

IN THE HIGH COURT OF FIJI

NATIVE LAND TRUST BOARD

v

THANIGOHALA ODDYAR,
HEMANT KUMAR & HAMIDA BIBI

High Court
Gates, J
24 November, 2000
HBC0289/00L

Landlord and tenant - whether Agricultural Tribunal empowered to stay its awards pending appeal - stay pending determination of appeal - statutory interpretation - observation of vacant position in the Central Agricultural Tribunal - Agricultural Landlord and Tenant Act (Cap 270) ss18(1)(b), 28, 29, 33,35, 48(4), (5), 65(4), Regulations 2(2), 13, 44, Magistrates' Court Rules O. XXXVII rr. 6 & 9

The plaintiff was refused an application for stay by the registry of the Agricultural Tribunal and referred to the High Court or the Central Agricultural Tribunal. It filed an Originating Summons seeking a stay on payment of compensation under the Agriculture Landlord and Tenant Act.

Held - (1) The ordering of a stay of an order of compensation is within the powers of the Agricultural Tribunal.

(2) The omission of an express power to stay orders pending appeal would appear to be due to the informality of the scheme of ALTA.

Application remitted to Agricultural Tribunal to exercise discretion whether to order stay. Exercise of High Court Jurisdiction declined.

No cases referred to in Ruling

Kitione Vuataki for the plaintiff
J Waqa for the first defendant
Chen B Young for the second defendant

24 November, 2000.

RULING

Gates, J

The Native Land Trust Board, the Plaintiff in these proceedings, was the Respondent in three cases before the Agricultural Tribunal brought by the Defendants. All 3 of these cases are being appealed by the Plaintiff to the Central Agricultural Tribunal, Notices of Appeal having already been filed with the Registry of the Agricultural Tribunal.

Since the awards by the Tribunal involved orders for the payment of compensation [in WD2/99 of $4,787-00; in WD3/99 of $15,900; and in WD4/99 of $4,850] the Plaintiff seeks a stay on such payment pending the determination of the appeal.

The original Respondent comes to the High Court as plaintiff by way of originating summons dated 11 September 2000, together with an affidavit in support. Meanwhile the 1st and 2nd Defendants have filed a summons dated 13th October 2000 to strike out the Plaintiff's originating summons pursuant to the High Court Rules, Orders 5 and 18 rule 18. Amongst the usual claims in applications of this sort they seek the following orders -

"(d) This Honourable Court does not have the jurisdiction to hear and/ or decide the Plaintiff's application and/or the power and/or jurisdiction to grant the relief sought by the Plaintiff;

(e) The orders sought by the Plaintiff and/or the relief as sought by the Plaintiff are beyond the powers and jurisdiction of this Honourable Court to grant;"

The originating summons states that it is filed pursuant to the High Court Rules Order 5 rule 3 and Order 47 rule 1 [later amended to Order 45 rule 10] and the inherent jurisdiction of this court. Order 5 r. 3 states:

"3. Proceedings by which an application is to be made to the High Court or a judge thereof under any Act must be begun by originating summons except whereby these Rules or by or under any Act the application in question is expressly required or authorised to be made by some other means.

This rule does not apply to an application made in pending proceedings."

Order 45 r. 10 states:

"10. Without prejudice to Order 47, rule 1, a party against whom a judgment has been given or an order made may apply to the Court for a stay of execution of the judgment or order or other relief on the ground of matters which have occurred since the date of the judgment or order, and the Court may by order grant such relief, and on such terms, as it thinks just." (my underlining)

I do not think this is the relevant rule because of the prerequisite ground for stay referred to and underlined in rule 10. The Plaintiff [original Respondent] through the affidavit of Joreti Dakuwaqa, its client services manager, says that it had tried to file an application for a stay with the registry of the Agricultural Tribunal but that this was declined. The Plaintiff was referred to the High Court or to the Central Agricultural Tribunal, since it was said the Agricultural Landlord and Tenant Act Cap. 278 [ALTA] had not provided such powers to the Agricultural Tribunal. The preliminary question therefore is, whether the Agricultural Tribunal [The Tribunal] does have power to stay its awards pending the determination of an appeal from its decisions.

It is noticeable that the scheme in Parts III and IV for the Tribunal's functions, duties and proceedings is markedly informal. A landlord, for instance, can be represented by his agent [section 28], and the Tribunal can take into account relevant facts "proved by the investigation" (of an application) "notwithstanding the absence of formal proof of these facts", albeit with certain safeguards [section 29]. The Tribunal can also "admit evidence whether written or oral, and whether or not such evidence would be admissible in civil or criminal proceedings" [section 18(1)(b)].

The heading to section 18 states:

Powers of tribunal those of Magistrates' court

This statement of powers set out in the heading to the section is not quite accurate, for not all of the powers of the Magistrates Court are granted to the Tribunal. Section 18(1) provides:

"18-(1) A tribunal shall have power:-

(a) to exercise all the powers of a magistrates' court in its summary jurisdiction of summoning and enforcing the attendance of witnesses, examining witnesses on oath, and enforcing the payment of costs and the production of documents; (my underlining)

(b) to admit evidence whether written or oral and whether or not such evidence would be admissible in civil or criminal proceedings;

(c) to award costs;

(d) to extend any period of time, whether in relation to a notice or otherwise, specified in this Act."

The section does not expressly mention a power to stay proceedings. Section 35 provides:

"Payment of the maximum rent stated in a certificate of maximum rent issued pursuant to the provisions of section 34 may be enforced notwithstanding at 9, appeal under the provisions of Part VI but, where on any such appeal it is adjudged that the maximum rent stated in the certificate is more or less than the maximum rent that ought to have been so stated the tenant or the landlord as the case may be, shall pay the difference to the landlord or tenant, as the case may be, and the difference so required to be paid may be recovered by the party entitled thereto as a debt due to that party".(my underlining)

This section by inference could mean there was no power in the Tribunal to stay orders such as of compensation since it could not stay an order increasing rent to be paid, such award being pronounced as a Maximum Rent Certificate under section 33. Appeals to the Central Agricultural Tribunal are covered in Part VI. The Central Agricultural Tribunal's powers are provided in section 48(4) and (5). They are:

"Section 48

(4) The central agricultural tribunal hearing the appeal may order evidence to be adduced before it on a day to be fixed for that purpose and may -

(a) refer the matter back to the tribunal to make afresh investigation subject to such direction of law, if any, as the central tribunal may think fit;

(b) affirm, vary or reverse the award, order or decision of the tribunal, or where a certificate of maximum rent has been issued, affirm, decrease or increase such maximum rent;

(c) summarily dismiss any appeal which, in the opinion of the central agricultural tribunal, is without merit or is otherwise scandalous, frivolous or vexatious.

(5) For the purposes of hearing and determining any appeal, the central agricultural tribunal shall have all the powers of a tribunal under the provisions of this Act and for the purpose of avoiding doubt, it is hereby declared that any order or determination of the central agricultural tribunal may have retrospective effect."

The stay powers provided in section 65(4) appear only to be available to avoid conflict of proceedings with other courts of law.

In the Agricultural Landlord and Tenant (Tribunal Procedure) Regulations Cap. 270 [at p. 15] Regulation 3 provides:

"Where no provision is specified by the Act or by these Regulations for the procedure to be followed or the conduct of proceedings by the parties, their barristers or solicitors or agents before the tribunals, the provisions of the Magistrates' Courts Rules shall be followed with such necessary alterations as may be necessary to meet the circumstances of the case: (my underlining)

Provided that the provisions of Orders V and XI of the said Rules shall always apply to proceedings before a tribunal."

Tribunals here generally refers both to the Agricultural Tribunal as well as to the Central Agricultural Tribunal [Regulation 2(2)]. Regulation 3 therefore would seem to provide that the stay procedure of the Magistrates Court Rules would apply to Tribunal proceedings, the relevant rules of which are Order XXXVII Rules 6 and 9 which I set out:

"Rule 6. Neither notice of intention to appeal nor an appeal shall operate as a stay of execution or of proceedings under the judgment or decision appealed front, except so far as the court below or the appellate court may order, and no intermediate act or proceeding shall be invalidated except so far as the court below may direct.

Rule 9. After the record of appeal has been transmitted, until the appeal is disposed of, the appellate court shall be in possession of the whole proceedings as between the parties to the appeal. Every application in the proceedings shall be made to the appellate court, and not to the court below, but any application may be made, through the court below:

Provided that, in cases of urgency, the court below may make any interim order to prevent prejudice to the claims or any party pending an appeal but every such order may be discharged or varied by the appellate court."

Under the heading "Extension of Time and Other Orders" subheading "General" Regulation 13 provides:

"Notwithstanding the provisions of these Regulations, the tribunal may make any order which it considers necessary for doing justice whether such order has been expressly requested by the person entitled to the benefit of the order or not." (my underlining)

Though this Regulation may be directed at the final award of the Tribunal, it could equally apply to any matter of procedure including appeals and stays.

Regulation 44 provides:

"After a reference file of a reference being appealed has been transmitted to the Central Agricultural Tribunal, all applications in the proceedings shall be made directly to that tribunal:

Provided that in cases of urgency, a tribunal may make any interim order to prevent prejudice to the claims of any party pending an appeal, but any such order may be discharged or varied by the central agricultural tribunal." (my underlining)

The Tribunal referred to here which may make interim orders pursuant to Regulation 2(2) is the Agricultural Tribunal. Therefore it is the Agricultural Tribunal that has jurisdiction, prior to the transmittal of the reference file being appealed to the Central Agricultural Tribunal, to hear applications in cases of urgency, and to make interim orders to prevent prejudice to the claims of any party pending an appeal. The ordering of a stay of an order of compensation is within the powers of the Agricultural Tribunal pursuant to Regulations 3 and 44, and the procedure of Rules 6 and 9 of Order XXXVII of the Magistrates Court Rules applies.

The omission of an express power to stay orders pending appeal would appear to be an omission owing to the informality of the scheme of ALTA in this regard. However a review of ALTA's sections and of the Regulations, particularly Regulations 3 and 44 leads me to the conclusion that Parliament intended that a stay should be one of the powers vested in this particular court.

I decline jurisdiction for the High Court to grant a stay. The Agricultural Tribunal registry should accept such an application for stay which should be placed before the Agricultural Tribunal. I understand there has been no encumbent in the position of Central Agricultural Tribunal for the last 2 years. Justice would seem to suggest therefore that this fact would be taken into account by the Tribunal in deciding whether to exercise its discretion on the question of stay pending the determination of the appeal. One wonders why the position has not been filled so that the Central Agricultural Tribunal could operate and provide its necessary service to ALTA litigants.

Application refused.

Marie Chan