Kali v Saten [1978] FJSC 104; Action 193 of 1977 (22 March 1978)

IN THE SUPREME COURT OF FIJI
CIVIL JURISDICTION

ACTION NO. 193 OF 1977

BETWEEN

RAM KALI f/n Sita Ram
Plaintiff

AND

SATEN f/n H. Maharaj
Defendant

JUDGMENT

This is an action begun by Originating Summons under Part XXIV of the Land Transfer Act, 1971. A number of affidavits have been filed in support of and in opposition to the application.

The application came before Tuivaga J. on the 27th September, 1977. The learned Judge considered that a summary hearing was not appropriate and that the case should be heard in open Court. He ordered pursuant to Order 28 r. 8 that the proceedings continue as if the matter had begun by writ and that affidavits filed herein stand as pleadings with liberty to either side to add to the pleadings or apply for particulars thereof. He dismissed the application for a summary order with costs to be in the cause.

The plaintiff established in evidence that she is the registered proprietor of the land contained in Lease No. 138235 and produced the original lease a photocopy of which was admitted by consent. The lease is a Crown Protected Lease and the necessary consent of the Director of Lands to institute legal proceedings against the defendant for vacant possession was conveyed to the plaintiff by letter dated the 26th September, 1975.

By letter dated 19th May, 1977 Messrs. Ramrak has gave the defendant one month's notice to vacate and deliver up vacant possession of the premises one month from the 31st May, 1977, that is by the 30th June, 1977. The plaintiff stated she had rented part of the premises to the defendant at a rental of $25 a month and admitted she had never obtained the consent of the Director of Lands to the tenancy.

Under section 169 of the Land Transfer Act the plaintiff being the last registered proprietor of the land issued a summons against the defendant who was in occupation of her land. She has given evidence of proof of title and produced the necessary Director of Lands Consent to institute the action. She has also produced a notice to the defendant to quit and deliver up vacant possession. The defendant is still in occupation.

It is for the defendant to show cause why he refuses to give possession of the land to the plaintiff.

He relies solely on an alleged agreement for sale and purchase of the land which he alleges he purchased for $800. He stated he had paid the total purchase price. The plaintiff denies any sale to the defendant.

There is no dispute that the alleged sale if in fact there was a sale, did not have necessary consent of the Director of Lands and under section 13 of the Crown Lands Ordinance the sale is an illegal transaction and null and void.

It is not necessary to determine whether there was an alleged sale as the defendant contends or a tenancy as the plaintiff alleges. Either transaction was illegal being without the consent of the Director of Lands.

While the plaintiff did disclose the illega1 tenancy her claim for possession is based on the independent and untainted grounds of her registered ownership and she does not have to have recourse to the illegal tenancy to establish her case.

In Amar Singh v. Kulubya (1964) A.C. 142 the Privy Council applied the principle that a plaintiff can recover what he has transferred under an illegal contract if he can frame his action upon some independent and lawful ground.

That case is on all fours with the instance case. It concerned an illegal lease of "MAILO" land by an African to a non-African which was prohibited by a Uganda Statute except with the written consent of the Governor. No consent was obtained to the lease. After the defendant had been in possession for several years the plaintiff gave notice to quit and ultimately sued him for recovery of the land. He succeeded.

The onus is on the defendant by virtue of the provisions of Part XXIV of the Land Transfer Act to show cause why he should not deliver up possession of the land to the plaintiff. He relies solely on an alleged agreement which is an illegal agreement. I hold that he has not shown cause why an order should not be made in favour of the plaintiff.

If the hearing of this action is open Court has in any way altered the procedure provided in Part XXIV of the Land Transfer Act where the burden is on the defendant to show cause I would still hold that the plaintiff has established her case and the defendant has no defence to her claim for possession. She is entitled to an order for immediate possession.

I order that the defendant deliver up immediate possession of the premises and land occupied by him being the land contained in lease 138235 to the plaintiff. I further order that he pay the costs to the plaintiff the costs of the application before Tuivaga J. and of this hearing to be taxed if not agreed.

(SGD) R.G. Kermode
JUDGE

Suva,
22nd March, 1978.