Singh v Natama [1979] FJSC 75; Action 100 of 1978 (13 July 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA

Civil Jurisdiction
Action No. 100 of 1978

BETWEEN

BALWANT SINGH s/o Bissun Singh
(Plaintiff)

AND

SAINIVALATI NATAMA & ORS.
(Defendants)

Mr. Jai Raj Singh, Counsel for the Plaintiff

JUDGMENT

The plaintiff sues as executor of a deceased farmer in relation to the deceased’s cane farm at Sabeto.

It is alleged in the statement f claim that the deceased died on 26/1/77 and a month or two later defendants 1 to 8 moved on to the deceased’s land and prevented the plaintiff from entering it and cultivating it during 1977 and 1978. His statement of claim prays for damages based on the loss of 800 tons of cane in the two years at nett profit of $15.00 per ton, for damages, and an injunction restraining the defendants from tresp-assing on the land and on order that they vacate the land.

The defendants entered an appearance on 8.5.78 but failed to file any defence.

At the hearing on 4/8/78 of the plaintiff’s application to enter judgment against all 8 defendants their lawyer Mr. Matawalu contended that the plaintiff only held ½ acre of land. Leave was granted to file a defence.

In the written statement of defence the defendants did not admit that the deceased had a farm but at the same time admitted that he cultivated cane.

In an amended statement of defence the defendants 1 to 8 alleged in para 2 that the land had not been cultivated for several years and that the Native Land Trust Board had advised them that they could enter it.

In para 3 of their defence they state that honestly believing that the land was native land they allowed a stranger to cultivate broom upon it.

In para 4 the defendants 1 to 8 deny that the plaintiff ever asked them to vacate the land.

The defendants failed to comply with an order for discovery of documents and on a summons to strike out the defence on the ground of the failure the defendants did not appear. The defence was ordered to be struck out and an ex parte hearing of the plaintiff’s case was ordered.

At the ex parte hearing the plaintiff gave evidence showing that the deceased occupied the land under a provisional lease granted by the N.L.T.B. and on his death the plaintiff was also granted a provisional lease as executor as appears in Ex. 7 and 10.
There has been considerable correspondence between the plaintiff and the N.L.T.B. and at no time has the latter denied the plaintiff’s right to be on the land in question. In fact the Board’s letter Ex. 10 dated 5/5/78 acknowledges the existence of a provisional approval of a lease and asks for stamp duty, Board’s fee and rent totalling $313.00. The plaintiff says he has paid that sum and I believe him. The yearly rent charged in Ex. 10 is $275.00 which is the amount fixed in the first provisional approval in Ex. 7 dated 19.8.71.

The plaintiff has produced receipts for rent and I am satisfied that the deceased’s estate is not in arrears with the rent.

I am satisfied on the evidence that the plaintiff’s father’s estate is entitled to the land in question, which has hitherto been known as farm 929, as leaseholder from the N.L.T.B.

Defendants 1 to 8 have established no title or lawful claim to use or occupation of any part of the land. In fact their defence suggests that they acted in the mistaken belief that there was no lawful occupier.

They probably hoped that when the deceased died this right to the land died with him. It is clear that they have no right whatever to be upon this land.

There is a claim for damages for the amount which the plaintiff alleges could have been earned by him had he not been kept forcibly off the land. His evidence on such loss falls short of what he claims.

The statement of claim alleges that in 1977 & 1978 he would have harvested 2 x 400 tons of sugar cane at a nett profit of $15.00 per/ton. That would represent a loss of earnings amounting to $12000 i.e. $6000 per year. However in evidence he said that he could grow 300-350 tons per year.

I am satisfied on the evidence that the farm when brought under proper and continuous cultivation will be able to produce 370 tons. The plaintiff gave this as the amount which had been produced in 1967 and I accept his evidence. From then onwards the production had declined because the deceased had become very old and in 1975 it was about 20 tons. It is apparent that in the past 4 years or so the land had been neglected and was virtually uncultivated. The plaintiff says he intended and still intends to use the land for cane farming. However, that is only a statement of intention. Had he in fact been cane farming when the defendants trespassed and if he had been stopped from doing what he had always been doing the calculation of damages would have been simpler. Nevertheless I believe that the plaintiff would have re-opened the land and re-commenced cane-farming. I think he could and would have produced two crops by now but production would I think be less than in 1967 during the first year or two of re-cultivation. I think 250 tons per year would be a safe estimate. I find that the defendants’ actions prevented the plaintiff from growing and selling 500 tons of sugar cane since March 1977.

The plaintiff says the price of cane was $25-$30 per ton. I accept the lower figure. From this would have to be deducted the cost of cultivation, preparation, harvesting and transport to the sugar mill. P.W.2 says that about half the earnings would be used in covering such expenses. That is only a rough guide and can no doubt vary considerably; however, I think it would certainly not be higher than that on a fertile farm such as that in question. I accept B.W.2’s evidence. The nett earnings would be $(12.50 x 500) = $6,250. P.W.2 also stated that it would cost about $1000 to bring the farm in its run down state to a sufficient level to cultivate cane. Deducting that sum of $1000 from the $6,250 one is left with $5,250 which I estimate as the plaintiff’s loss of earnings.

In those circumstances I make no award of exemplary damages as such.

There will be judgment for the plaintiff as against defendants 1 to 8 for immediate vacant possession of farm 929.

AND defendants 1 to 8 are ordered to pay as damages to the plaintiff the sum of $5,250.

In view of the order for possession I do not include an injunction against them.

The defendants 1 to 8 will pay the costs hereof which I fix at $60.00.

It is to be observed that the proceedings were withdrawn as against the 9th defendant, the Native land Trust Board.

(Sgd.) J.T. WILLIAMS,

JUDGE.

LAUTOKA,
13th JULY, 1979.