Pal v Prasad [1977] FJSC 104; Civil Appeal 10 of 1976 (25 March 1977)

IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

CIVIL APPEAL NO. 10 OF 1976

BETWEEN

CHANDAR PAL
s/o Ragho Ram
Appellant

AND

HARI PRASAD
s/o Shiu Sahay
Respondent

JUDGMENT

This is an appeal against the decision of the Magistrates Court sitting at Suva on the 22nd November, 1976 when it dismissed the appellant's claim.

The appellant, the plaintiff in the Court below, claimed from the respondent the sum of $147.51 being alleged arrears of rent amounting to $105 for the months of July, August and September 1974 and $42.51 arrears of water rates.

The respondent in the Court below denied that he was at the relevant time the tenant of the plaintiff and called as a witness his son Sahadeo who stated he was the tenant.

The question as to whether it was the respondent or Sahadeo who was the tenant of the plaintiff was the major issue which the trial Magistrate had to resolve on the conflicting evidence given before him but regrettably he made no finding of fact on this issue nor indeed is there in his judgment any indication that he considered the evidence given by the parties on this issue.

The trial Magistrate appears to have been led astray by counsel for the defendant who in his final address raised the question of illegality. This led the trial Magistrate to devote the bulk of his judgment to the consideration of this question of illegality and to dismiss the claim on the grounds that there was no evidence to establish there was a tenancy which I take to mean a legal tenancy or if a tenancy existed the plaintiff had failed to establish this fact. He made no finding of facts on the evidence before him which would have entailed acceptance either of the plaintiff’s story or that of the defendant.

Under cross-examination the plaintiff had admitted his lease was a crown lease. He was not asked, as far as the record discloses, the nature of his crown lease, whether it was a protected lease as referred to in section 13(1) of the Crown Lands Ordinance, or whether the Director of Lands consent to the tenancy had been obtained.

Counsel for the defendant, however in his final address stated as a fact that there was "no consent of Director and hence proceedings are defective."He referred also to" a decided case on the Crown Lands issue" although the reference to this case was not given to the Magistrate.

It appears that the trial Magistrate took the view that it was for the plaintiff to establish affirmatively that the tenancy was a legal tenancy and not having done so the claim must be dismissed.

While there was no order for pleadings the defendant did file one Defence which was a bare denial that he owed the money claimed and some months later filed another Defence alleging that one Bodh Mati Sahadeo occupied the premises and denying that he occupied the premises. In neither Defence did he raise the question of illegality.

Where pleadings are ordered Order XVI of the Magistrates Court's Rules would have had to be complied with and under Rule 3(i) of the Order the defendant would have had to raise the issue of illegality. In the Supreme Court under Order 18 r.8 illegality must be specially pleaded. However if there is evidence before the Court of an illegal transaction whether a party has raised the point or not it is the duty of the Court to take the point and refuse relief. That however was not the position in this case.

The question of illegality was not in issue and there was no evidence before the Court that the tenancy was illegal. There was evidence that the plaintiff’s lease was a crown lease but no evidence that the lease contained a clause to the effect that it was a protected lease under the provisions of the Crown Lands Ordinance in which event under section 13(1) of that Ordinance the tenancy would be illegal if the prior written consent of the Director of Lands to the tenancy had not been obtained. There are many crown leases which are not "protected" leases.

As the defendant, who was represented by counsel did not raise the issue of illegality either before the close of the plaintiff’s case or establish illegality by evidence adduced by the defence the plaintiff did not have to affirmatively prove that his tenancy was a legal one. He was entitled to assume that the legality of the tenancy was not in issue and conduct his case accordingly.

On the evidence before the trial Magistrate there was no dispute that the plaintiff was owed $105 for rent but it was disputed that the defendant was the tenant of the plaintiff. The identity of the tenant was in issue.

Due to the trial Magistrate's preoccupation with the question of illegality which was not in issue he did not direct his mind to the issue as to who was the tenant liable for the arrears of rent.

In the absence of any findings of fact on the conflicting evidence as to who was the tenant of the plaintiff this Court is in no position to decide whether the defendant, Sahadeo or Bodh Mati Sahadeo was the tenant.

This action will regrettably have to be reheard by the Magistrates Court and I so order.

In the circumstances there will be no order as to costs.

(SGD) R. G. Kermode
JUDGE

Suva,
25th March, 1977.