Singh v Udit [2008] FJSC 1; CBV0006.2007S (15 July 2008)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CIVIL APPEAL NO. CBV0006 OF 2007S
(Fiji Court of Appeal No. ABU0091 of 2005S)

BETWEEN:

SARBAN SINGH
Petitioner

AND:

RAM UDIT
Respondent

Coram: The Hon Justice Keith Mason, Judge of the Supreme Court
The Hon Justice Kenneth Handley, Judge of the Supreme Court
The Hon Justice Ronald Sackville, Judge of the Supreme Court

Hearing: Tuesday 15th July 2008, Suva

Counsel: Mr S. Sharma for the Petitioner
Dr Sahu Khan for the Respondent

Date of Judgment: Tuesday, 15th July 2008, Suva

JUDGMENT OF THE COURT

[1] This is an application for special leave to appeal from the decision of the Court of Appeal of 20th November 2006 which dismissed the Petitioner’s appeal from the judgment of Jiten Singh J. in the High Court. His Lordship quashed decisions of the Agricultural Tribunal and the Central Agricultural Tribunal which had dismissed the Respondent’s application under the Agricultural Landlord & Tenant Act Cap. 270 (ALTA) for a further lease of 20 years.

[2] The tenant’s application had been dismissed because both Tribunals found that the 20-year lease granted in 1975 was illegal. It was granted by Parvati Singh the executrix of the estate of her late husband who was registered by transmission as the proprietor of the land on 8th November 1966. The illegality was said to be created by s23(1)(e)(ii) of the Trustee Act (Cap 65) which confers a power on trustees including the executor of a will to lease land for a term not exceeding 10 years. It relevantly provided –

"..........every trustee, in respect of any property for the time being vested in him, may –

(e) grant a lease ..... for any term not exceeding –

(i) ..........

(ii) in the case of any other lease ...... ten years ......"

[3] The section does not make a lease by a trustee for more than 10 years a criminal offence or otherwise illegal or void. It confers a power without defining the consequences of a lease granted for a longer term.

[4] Jiten Singh J. upheld this construction and his decision was clearly correct. On 20 November 2006 his decision was upheld by the Court of Appeal. It added, as a further ground for dismissing the appeal, that a breach of trust was not established because the will may have conferred the necessary power and it was not in evidence.

[5] The petitioner applied to the Court of Appeal under s122(2)(a) of the Constitution for leave to appeal to this Court and foreshadowed an application to this Court for leave to tender the will as additional evidence.

[6] The Court of Appeal refused leave. An application has been made to this Court for leave to tender the will as additional evidence. This is competent because s14 of the Supreme Court Act gives this Court all the powers of the Court of Appeal which include, under r22(2) of the Court of Appeal Rules, full discretionary power to receive further evidence. After a hearing on the merits this can only be received on special grounds. Evidence of matters such as the will, which was known to be in existence before the trial, is only received in limited circumstances. The parties are expected to bring forward at the trial all relevant evidence in support of their case.

[7] The principles governing the reception of further evidence on appeal were reviewed in Ladd v. Marshall [1954] 1WLR 1489 CA. The present case is not within those principles because the evidence could not affect the result.

[8] In relation to third parties Parvati Singh had all the powers of any registered proprietor and at law she could grant a lease for 20 years or more if she chose. Such a lease would however, be a breach of trust if the trustee lacked the power to grant it. The necessary power could be found in the will.

[9] Even if the there was no power in the will there would be no breach of trust if the beneficiaries were all of full age and capacity and they consented to the breach. Even if they were not all of full age and capacity in 1975 those under age might later have consented to or acquiesced in the breach of trust with full knowledge of all material facts.

[10] Even if the lease was a breach of trust it would still not be void. Although the trustee would be liable for the breach the lease could nevertheless be binding on the trust. This would depend on whether the tenant acquired a legal interest in good faith and without notice of the breach. The relevant facts have never been investigated. The lease was prepared by a solicitor acting for both parties. He should have satisfied himself that the trustee has power to enter into the lease and it might be inferred that he did so.

[11] In any event it was not shown that he was aware that it was a breach of trust or that the tenant was affected with the knowledge of his solicitor at the time. The lease was not registered under the Transfer of Land Act and the tenant’s interest at law was, only that of a tenant who entered and paid rent. The lease at law would not have been a breach of s23(2)(e)(ii) of the Trustee Act. The tenant would also have had right in equity to a 20 years lease if specific performance could have been granted.

[12] The Petitioner’s case on statutory illegality under s23(1)(a) of the Trustee Act must fail because a lease at law or in equity by the Trustee for more than 10 years is not illegal or criminal. That was the case the owners sought to make in the Tribunals, in the High Court and in the Court of Appeal and it was properly rejected. If they wished in the alternative to establish that the lease was entered into in breach of trust, that the tenant took with notice of the breach, and this affected the jurisdiction of the Tribunals or the manner in which their discretions should be exercised, they had to do more than tender the will.

[13] None of the other matters referred to were proved in the Tribunals or in the High Court and the issues were never litigated. The Court therefore rejected the application to call further evidence.

[14] The petitioner submitted in the Courts below that certiorari was excluded by s61 of ALTA but that submission was not maintained in this Court. It is clear on the authorities that such a section does not exclude certiorari for jurisdictional error. In any event, as Jiten Singh J. held, s.18(2) and (3) of ALTA confer powers on the Tribunals to grant relief despite proof of illegality. Hence proof within s59(3) that the lease was entered into in contravention of any law would not exclude the jurisdiction of the Tribunals to order the grant of a new lease for 20 years.

[15] For these reasons the petition is dismissed with costs.

Hon. Justice Keith Mason
Judge of the Supreme Court

Hon. Justice Kenneth Handley
Judge of the Supreme Court

Hon. Justice Ronald Sackville
Judge of the Supreme Court

Solicitors:
Suresh Maharaj and Associates, Lautoka for the Petitioner
Sahu Khan and Sahu Khan, Ba for the Respondent