Akkamma v Subbaiya [1979] FJSC 82; Action 299 of 1978 (25 October 1979)

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

Action No. 299 of 1978

BETWEEN

AKKAMMA d/o Ram Sami
Plaintiff

SUBRAIYA f/n Appaiya Naidu
Defendant

Mr. N. Tappoo, Counsel for the Plaintiff
Mr. H.C. Sharma, Counsel for the Defendant.

JUDGMENT

This is a claim for possession of a piece of land occupied by the defendant.

It is common ground that the defendant's brother, Venkat Naidu, sold to the plaintiff a "lease" of Crown land for $10,000 under an agreement dated 30/10/73, Ex. P. 2. The Director of Lands endorsed his consent to the agreement on 14/12/73.

Prior to the Director giving his consent some correspondence passed between the Director and Messrs B.K. Pillay & Co., Solicitors of Nadi, which is marked EX.5 and was put in by consent. EX. P 5(3) is a letter dated 2/11/73 and indicates that consent to a transfer of all the land would be given, but not to an agreement which proposed to sub-divide the land.

The land in question is known as Farm 709; C.T. 10661 and while Venkat Naidu occupied it the defendant apparently lived on a portion of it large enough to accommodate a house. On 8/8/73 Venkat Naidu by a written agreement EX. P.3 dated 8/8/73 purported to transfer to the defendant an area 9 yds. x 77 yds. The Director of Lands would not agree to that sub-division.

When Venkat Naidu and the plaintiff were arranging the sale it was agreed that the defendant should be granted the said portion of 9 yds. x 77 yeds. and clause 9 of the Sale and Purchase agreement EX. P.2 excepted that portion from the assignment explaining that it was granted to the defendant. On receiving the Sale and Purchase agreement Ex. P.2 the Director wrote the letter EX. P.5(3) supra and returned the agreement EX. P.2. Thereupon Messrs Pillay replied to the Director by a letter of 28/11/73, EX. P. 5(4) saying that the plaintiff and Venkat Naidu had cancelled the assignment to the defendant and enclosed the sale and purchase agreement EX. P.2. with the offending para 9 deleted. Thereupon the Director of Lands gave his consent to the transfer, which as I have said is endorsed thereon as from 14/12/73.

The defendant is still on the land and on 20/12/77 the plaintiff served him with notice to quit. In his written statement of defence the defendant alleges that when the Director of Lands refused his consent to the partitioning of the 9 yds. x 77 yds. Venkat Naidu and the plaintiff amended clause 9 but agreed among themselves that the defendant would still be allowed to remain on that portion.

P.W.1, a registered surveyor, employed by the Department of Lands and Mines, gave evidence by reference to the plan EX. P.6 to show that the defendant's house was in fact upon the plaintiff's land.

The defendant and his brother Venkat Naidu both stated in evidence that the defendant had paid Venkat Naidu $400.00 for the piece of land in question. That evidence is somewhat suspect because the document EX. P.3 says it was to be granted to the defendant in consideration of natural love and affection.

P.W.2 Madhwan Pillai was the solicitor's clerk (Pillay & Co.) who dealt with this arrangement, says that he informed Venkat Naidu and the defendant that the Director of Lands would not permit the sub-division favouring the defendant. He says that they both agreed to the deletion of the offending clause 9.

The plaintiff, P.W.3, gave evidence in that belated order by consent and for convenience of witness. She says that following the Director's refusal to sub-divide the Crown lease Venkat Naidu told the defendant in her presence that he would have to vacate the land. She says she gave him 3 months in which to find another place.

I have no hesitation in stating that I believe the plaintiff and I accept her evidence that once the Director of Lands made it clear that there could be no sub-division the defendant agreed to vacate.

On 17/4/71 the plaintiff received from the Director an Approval Notice of Lease, EX. P.1. It contains an addition to clause 2 to the effect that it is a protected lease under the provisions of the Crown Lands Ordinance. P.W.1 says that a lease is ready for issue to the plaintiff from the Director of Lands.

Mr. Sharma for the defendant submitted that an Approval Notice does not give any rights to the holder. I have already ruled in Pachamma v. Logessa, Civ A.88/78 (judgement dated 14.9.79) that such an Approval Notice gives the holder the equitable rights of a lessee under a properly executed lease. Following my own ruling in that case I find that the plaintiff can maintain this action.

I accordingly find that the defendant is a trespasser and must give up possession.

In addition to her claim for possession the plaintiff claims damages for loss of use of the land. She says it would produce about 8 tons of sugar cane per year and that her nett profit is about $15.00 per ton.

P.W. 1 says that the area held by the plaintiff is not 8 acres as had been thought by the parties but in fact it measures 12 acres and 32 perches. The plaintiff says she produced 253 tons last year and that works out at roughly 21 tons an acre based on the assumption that all her land is under cultivated. There is no evidence as to how much land is under cultivation and no way of checking the plaintiff's statement that the land occupied by the defendant would produce 8 tons of cane. She states that the nett profit on a ton of cane comes to $15.00 but I am not informed as to the price of cane or given any details to support that statement. There is no evidence from any other source as to the net profit per ton. I do not think I would be justified in accepting her evidence that she has lost 8 x $15.00 = $120 per year by reason of the defendant's trespass.

Had the particulars of the damages been set out in the Statement of Claim they could have been pleaded to in the Statement of Defence and the defence pleading may have assisted me in arriving at some conclusion.

There will be judgment for the plaintiff for possession. The defendant will pay the costs hereof.

(Sgd.) J.T. WILLIAMS
JUDGE

LAUTOKA,
25th October, 1979.

Messrs Anand, Tappoo, Krishna & Co., for the Plaintiff
Messrs Patel & Sharma, for the Defendant.

Date of Hearing: 3rd day of October, 1979.