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Chand v iTaukei Land Trust Board [2019] FJAGT 2; ND12.2011 (27 August 2019)

IN THE STATUTORY TRIBUNAL, FIJI ISLANDS
SITTING AS THE AGRICULTURAL TRIBUNAL
NORTHERN DIVISION AT LABASA

Reference No. ND 12 of 2011
BETWEEN: Ritesh Chand of Kawakawa, Waiqele, Labasa.
Applicant

AND: iTaukei Land Trust Board a body corporate duly constituted under the
iTaukei Land Trust Act, Cap 134 of 431 Victoria Parade, Suva.
1^st Respondent

AND: Satendra of Draladamu, Labasa.
2^nd RESPONDENT

Before: Mr. Jeremaia N. Lewaravu
Resident Magistrate
Date of Hearing: 19^th June, 2019
Dater of Decision: 27^th August, 2019

Appearance
Mr. Ram of Gibson & Co for the Applicant.
Mr. Ratule of iTLTB Legal Division for the 1^st Respondent
Mr. Raramasi of Maqbool & Co for the 2^nd Respondent

Judgment

1. The Applicant filed an application in this Tribunal on the 27^th of June, 2011 to fix boundaries in the subject land described in Instrument of Tenancy No. 11223 containing an area of 12.1406 ha known as Draladamu subdivision No. 3 belonging to the 2^nd Respondent and Instrument of Tenancy No. 6394 containing an area of 9.7529 ha known as Draladamu subdivision No. 2 belonging to the Applicant. Both Respondents have filed and served Statements of Defence and the Applicant has filed and served a reply to the Statement of Defence filed by the 1^st Respondent.
   
2. The Hearing of the substantive matter was held on the 19^th of June, 2019 at Labasa. At the conclusion of the evidence presented by the Applicant, both Respondents opted not call any witnesses. A field inspection was also conducted on the 19^th of June, 2019 after the Court Hearing.

The Law

3. Section 9(2) of the Agricultural Landlord and Tenant Act, Cap 270 of Fiji (herein referred to as ‘ALTA’) provides that:
   

‘Every contract of tenancy shall be deemed to contain the following clause:

This contract is subject to the provisions of the Agricultural Landlord and Tenant Act, and may only be determined, whether during its currency or at the end of its term, in accordance with such provisions. All disputes and differences whatsoever arising out of this contract, for the decision of which that Act makes provision, shall be decided in accordance with such provisions’ (Emphasis is my own).

4. The Act also stipulate in section 22(1),(i) that:
   

‘In respect of its agricultural district, a tribunal may, upon the application of a landlord or a tenant of an agricultural holding-

in the case of any dispute, specify the area and boundaries of any agricultural holding...Provided that no appeal shall lie in relation to such decision which shall be final and conclusive for the purposes of this Act’ (Emphasis is again my own).

5. The same Act also state in section 54 that:

‘(1) Each landlord of an agricultural holding shall clearly mark on the land the corners of such holding in such a way that the boundaries thereof are easily ascertainable and shall point out such boundaries to the tenant at the commencement of the tenancy.

(2) A tenant of an agricultural holding shall be responsible for ensuring that the boundary marks of such holding are maintained in their original position throughout the term of his tenancy’.

Legal Matrix

6. I have considered all the evidence presented herein.
   
7. It seems to me that the basis of the claim filed by the Applicant herein stems from a Terms of Settlement filed in Lal v NLTB & Lal ND No. 40 of 1979.
   
8. I cannot accept the proposition raised for the following reasons:
   
   1. The iTaukei Lease (iTLTB file reference No. 4/9/9394) that was the subject of dispute in Tribunal Reference ND 40 of 1979 has long since expired. The law is clear, that upon expiry of the subject lease, the land reverts back to the landlord absolutely (see: Reddy v Subramani, DOL WD No.15 of 2007). Which means that any rights and/or benefits arising from the agreement made in Tribunal Reference ND 40 of 1979 cannot be imported into the new lease as upon expiry those rights and/or benefits expired with that old iTaukei Lease.
      
   2. Furthermore, section 9 of ALTA is significant. It means that any dispute arising under any agricultural lease must be resolved during the currency of the lease term and/or at the end of tenure. The dispute in Tribunal Reference ND 40 of 1979 was resolved amicably. The issues cannot therefore subsist after the expiry of the relevant iTaukei Lease by virtue of section 9 of ALTA.
      
9. The Applicant is also proposing that the determination of the boundary herein be made according to occupation. The Applicant and his witnesses have submitted evidence of the cultivation purportedly done by the previous leasee Mrs. Manaina Duvalele. Rightly or wrongly, without the attendance of the said Mrs. Manaina Duvalele at the Hearing, I place very less weight on the probative value of such evidence.
   
10. I have had the advantage of observing all the witnesses at the Hearing. The Applicant is an educated man. He is also a businessman. He knew perfectly well the difference in acreage between his lease to that of his grandfather. He also knew the difference between the old boundary from the new boundary. He simply chose to ignore the new boundary by adhering to the old boundary.
    
11. Be that as it may, section 8 of ALTA is instructive. It specifies that a contract of tenancy shall be evidenced by an instrument in writing called an ‘instrument of tenancy’. This instrument of tenancy shall be in the prescribed form and shall contain among other things ‘a sufficient description of the land’. Generally, the boundary of a lease is sufficiently described in the lease document itself. It is for his reason that the requirements under section 54 of ALTA are regarded as mandatory. The landlord is required under the relevant provision to mark and to point out the boundary whereas the tenant is required to maintain the boundary. For the reason highlighted herein, I cannot accept the second proposition by the Applicant.
    
12. The Applicant is also seeking a declaration of tenancy under section 4 and section 5 of ALTA in relation to the extra land under occupation and cultivation. On this point, I wish to state that a form 6 application for declaration of tenancy cannot ‘go hand in gloves’ with an application under form 7 to fix boundaries as the test for both are different. It amounts to an abuse of the Court process.
    
13. In light of the evidence presented herein, it is the finding of this Court that the Applicant is encroaching on 12 acres of land belonging to the 2^nd Respondent. The boundary of his lease is clearly described in the Instrument of Tenancy No. 6394 that was originally issued to Mrs. Manaina Duvalele containing 9.7529 ha.
    
14. The full Orders of the Court is as follows:
    
    1. The boundary of the Applicant is fixed as per the land description in iTaukei Instrument of Tenancy No. 6394.
    2. The Applicant is further ordered to cease his encroachment forthwith.
    100. The Applicant is also ordered to pay legal costs to both Respondents in the sum of $1,000.00 each to be paid within 21 days.
    4. Appeal within 28 days.
       

Ordered Accordingly,

............................................................

Jeremaia N. Lewaravu [Mr.]

RESIDENT MAGISTRATE

27^th August, 2019