Careful Investments Ltd v Bali [1977] FJSC 115; Action 6 of 1977 (29 September 1977)

IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

ACTION NO. 6 OF 1977

BETWEEN

CAREFUL INVESTMENTS LIMITED
Appellant

AND

RAM BALI
s/o Raghuni Dass
Respondent

JUDGMENT

The appellant in the Court below was the plaintiff seeking possession of 5 acres or thereabouts of freehold land being part of the land contained in CT. 7823 situated at Navua occupied by the defendant, the respondent in this appeal, on the ground that the defendant had unlawfully entered and taken possession of the land.

The respondent at the hearing in the Magistrates Court Suva claimed he was a tenant and not a trespasser, as alleged by the appellant, and was a protected tenant under the provisions of the Agricultural Landlord and Tenant Ordinance.

The learned trial Magistrate in a lengthy and considered judgment found that the defendant was an agricultural tenant entitled to the protection of the Agricultural Landlord and Tenant Ordinance and that his tenancy had not been properly determined and dismissed the plaintiff's claim with no order as to costs. From this decision the appellant has appealed and has raised four grounds of appeal as under:

"1. The learned Magistrate erred in law and in fact in holding that the Defendant was an agricultural tenant.

2. The learned Magistrate erred in fact in finding that the Defendant had made payments in cash and in kind to the Plaintiff.

3. The learned Magistrate erred in law in finding that the area of land which was the subject of the action was inadequately described.

4. The learned Magistrate failed to deal with the plaintiff's alternative plea that if the defendant was a tenant (which was denied) then the plaintiff was entitled to possession for non-payment of rent."

The learned Magistrate was not impressed with the respondent whom he described as a man to whom the truth did not mean a great deal unless it happened to accord with his wishes. However, the Magistrate was not impressed with the appellant's two main witnesses as regards their veracity.

In the situation in which he found himself the Magistrate had a difficult task in ascertaining the true facts. Doing the best he could on the acceptable evidence before him the Magistrate did consider and make findings on the issues which arose.

Ownership of the land in question was not in issue and there is no doubt that the respondent went into occupation of the land and was in occupation in 1966 and is still in occupation.

It was established by an independent Government field officer stationed at Sigatoka that the respondent was a farmer on the land and in 1975 had 10 acres of rice, 5 acres of peanuts, 3 acres of mixed vegetables and 12 acres of pasture land interplanted with coconuts. The land the respondent farmed he said was approximately 30 acres and was fenced. This witness stated that in 1971 the respondent was not using 30 acres but increased the area sometime later. What area he occupied in 1971 was not stated but as alleged in the Statement of Claim the area was not less than 6 acres or thereabouts in 1966.

The learned Magistrate found as a fact that the land was agricultural land and that the defendant was entitled to the protection of Agricultural Landlord and Tenant Ordinance. Section 4(1) of the Agricultural Landlord and Tenant Ordinance provides:

"4(1) Where a person is in occupation of and is cultivating an agricultural holding and such occupation and cultivation has continued before or after the commencement of this Ordinance for a period of not less than three years and the landlord has taken no steps to evict him, the onus shall be on the landlord to prove that such occupation was without his consent, and if the landlord fails to satisfy such onus of proof, a tenancy shall be presumed to exist under the provisions of this Ordinance."

There can be no doubt the respondent is in occupation of and cultivates agricultural land as defined in the Ordinance and has been in occupation for not less than three years. Whatever area he occupies whether it is 5 acres or 30 the area he occupies is in excess of 2½ acres and under section 4(1) of the Ordinance a tenancy is deemed to exist unless the appellant establishes that such occupation was without the consent of the landlord, who was in the instant case the predecessor in title of the appellant when the respondent went into occupation of the land.

The owner of the land prior to the appellant was P.W.3 Narayan Prasad a witness whom the Magistrate did not believe. Despite this disbelief his evidence indicates that he knew of the respondent's occupation of the land about the time the respondent went into occupation and apart from asking the respondent to leave on more than one occasion the respondent remained in occupation from 1966 until Prasad sold the land in 1973 and continued in occupation thereafter. Requests to vacate which are not followed up by action cannot be deemed to be steps to evict the respondent.

The Magistrate found as a fact that the first positive step taken to evict the respondent was the notice issued by the appellant to the respondent nine or ten years after the respondent had moved onto the land. By the time this notice was issued, by virtue of section 4(1) of the Ordinance a tenancy was deemed to exist.

Dealing with the grounds of appeal there was ample evidence to support the Magistrate's finding that the respondent was an agricultural tenant and the first ground fails.

As to the second ground, the Magistrate held on the balance of probabilities that the respondent did make payments in cash and kind to P.W.3, the then owner of the land, which by virtue of section 4(2) of the Ordinance, in the absence of proof to the contrary, is presumed to be rent. Having expressed his view that he did not believe the respondent or P.W.3 and P.W.4 I do not consider he was entitled to decide the issue of rent on the balance of probabilities. There was no acceptable evidence that rent was paid. Certainly no rent was ever paid or tendered to the appellant.

However, despite Mr. Knight's argument that there can be no tenancy unless rent is charged for the land, section 4(1) of the Agricultural Landlord and Tenants Ordinance makes no mention of rent. If a person occupies and cultivates an agricultural holding for not less than three years and the landlord has taken no steps to evict him a tenancy is deemed to exist. The onus is on the land lord to establish that such occupation was without his consent.

Had section 4(1) been concerned only with occupation by a person under a contract of tenancy which would imply that there was consideration for the granting of the tenancy in the nature of rent the subsection would not have provided that a tenancy was deemed to exist unless the landlord established the occupation was without his consent.

Rent is referred to in section 4 subsection 2 but in my view this provision provides a means whereby the occupier can establish in the absence of proof to the contrary that his occupation is with consent of his landlord since he is paying rent.

Section 5 of the Ordinance provides the machinery to enable a person who claims to be a tenant, where the landlord refuses to accept him as such, to seek a declaration that he is a tenant. Section 23(a) enables a tenant to have the maximum rent fixed. These provisions in my view indicate that payment of rent is not under the Ordinance prerequisite for establishing the existence of a tenancy.

Whether rent was at the time paid by the respondent or not in my view is immaterial if it is established, as it was, that he was in occupation and cultivating an agricultural holding for more than three years and the owner of the land took no steps to evict him.

If Narayan Prasad (P.W.3) and Chandrika Prasad (P.W.4) had been believed by the Magistrate, and this Court cannot interfere with his finding on the credibility of these witnesses, it would have been established that the respondent who was related by marriage to P.W.4 was let on the land as a favour and no rent was charged. Access to the land he occupied was difficult and P.W.3 seldom visited that part of his holding. It would appear if that was the position that the respondent went ahead and from a mere right to occupy a house extended his occupation to 30 acres which he farmed efficiently.

The appellant company, which has paid a large sum for the land, would appear to have grounds to complain about the respondent's occupation of its land if it had no knowledge of that occupation when it purchased the land but its redress is not in my view against the respondent for possession on the grounds that he is a trespasser.

If the Magistrate erred as the appellant alleges in the second ground that would not affect the outcome in view of his finding that the respondent was protected by the Agricultural Landlord and Tenant Ordinance a finding which is supported by the acceptable evidence.

Ground 3 would only have to be considered if the respondent was not a protected tenant.

The learned trial Magistrate does not appear to have expressly considered the issue of non-payment of rent by the respondent which was raised as an issue in the appellant's reply. He did hold the tenancy was not properly determined which could imply he did consider the issue. This however cannot affect the outcome. The notice given by the appellant was not the three months notice to quit referred to in section 36(1)(c) of the Ordinance. Unless a landlord gives the required notice the Ordinance does not permit the landlord to terminate a tenancy on the grounds of non-payment of rent and to reclaim possession.

On my consideration of the record the learned Magistrate was correct in dismissing the appellant's claim with no order as to costs.

The appeal is dismissed with costs to the respondent which I fix at $30.00.

(SGD) R.G. Kermode
JUDGE

Suva,
29th September, 1977.