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Ibrahim v Naidu [1978] FJCA 5; CA No 56 of 1978 (30 November 1978)

IN THE FIJI COURT OF APPEAL
Appellate Jurisdiction

Civil Appeal No. 56 of 1978

Between

IBRAHIM
s/o Kannu Kutty
Appellant

and

MUNSAMI NAIDU
s/o Changappa Naidu
Respondent

S.M. Koya for the Appellant
S.R. Shankar for the Respondent

Date of Hearing: 24 November, 1978
Delivery of Judgment: 30/11/78

JUDGMENT OF THE COURT

Henry J.A.

This is an appeal against a decision of the Supreme Court sitting at Lautoka. Respondent sued appellant for damages on the ground that respondent had, without lawful excuse, erected a wire fence across a road which, so respondent claimed, was a right of way across appellant's land and which respondent said he had enjoyed without interruption for more than 20 years. Although no such relief was claimed, the learned judge made a declaration that:

"Respondent has a right of way over the land occupied by the (appellant) situate at Nasoso, Nadi, over which the (respondent) has hitherto enjoyed."

The claim for damages was dismissed. The sole question for this Court is whether the learned judge was right when he made the said declaration.

The evidence relates back to a lease granted by the Native Land Trust Board for a period of 30 years from January 1, 1953 in respect of an area of 1,176 acres. The lessee, the Colonial Sugar Refining Company Limited, sublet areas of approximately 10½ acres to a number of farmers for the purpose of growing sugar. On March 31, 1973 this lease was surrendered and it would appear that the native land then came again under the control of the Native Land Trust Board. Appellant and respondent were sub-lessees in possession in respect of adjoining areas. They so remained after the surrender of/the head lease. The evidence is that rice was grown in 1947. The road was then in existence and used for transport. Appellant became a sub-tenant in 1956. So, of course, the road was then in use. Respondent became a sub-lessee in the following year.

The claim is based on a prescriptive title of respondent to a right of way over the said road by reason of uninterrupted use for more than 20 years. The declaration in the Supreme Court was not made on this ground, but, without any amendment of the statement of claim, it was held that respondent and other farmers (sic) who had used the road were lawfully entitled to use it by virtue of the mutual covenants in their respective leases. That is to say, it was a right of way granted to all the farmers who had participated in the subleasing of the said area of 1,176 acres and who had used the road. How the Court could make such an all embracing finding in a simple action for unlawful interference with what was claimed to be a private right is not clear from the judgment. However, this finding has two fatal flaws, first no such claim of grant was relied on in the statement of claim, and, secondly, there are no covenants in any document produced which might even remotely be construed as such a grant. The only document to which this finding might appear to refer is a sugar cane contract between the South Pacific Sugar Mills Limited and respondent. There are other contracts in the area and presumably the other relevant sub-lessees (i.e. farmers) had similar contracts. We are completely unable to understand how such documents, entered into with a company which has no interest in the land, can grant such a right of way. It is otiose to pursue this topic. Respondent is therefore thrown back on his claim for a prescriptive right of way because a perusal of the lease to the Colonial Sugar Refining Company Limited does not give that Company any power to grant a right of way which would, through the Native Land Trust Board acting in pursuance of its statutory powers on behalf of the native owners, bind the native land.

What respondent is claiming, if the basis of his claim is a prescriptive right, is that an easement has been created by continuous use for more than 20 years. In the Law of Easements Goddard & Goddard 7th Edn. p. 127 the authors said:

"For all practical purposes there are five modes by which easements, as distinguished from natural rights, may be created and acquired: they- 1. By grant or covenant; 2. By virtue of an Act of Parliament; 3. Under a devise; 4. By prescription; 5. Under a custom. Theoretically, it is a question whether all these modes of acquisition are not identical –that is, whether the acquisition does no in each case take effect from a grant by the servient owner, either express or implied; and in support of this theory it is to be remarked that Lord Cairns, L.J., when speaking of the power claimed by a railway company under an Act of Parliament to set out a footpath over land it did not possess, said:- 'I will assume, in the first place, that that is a correct expression, and that the object is to create what is properly termed and easement over the land; but assuming that to be so, it appears clear that to create an easement over land you must possess the ownership of the land. Every easement has its origin in a grant express or implied. The person who can make that grant must be the owner of the land. A railway company cannot grant an easement over the land of another person. They may grant and easement as soon as they become proprietors of the land, but not until they become such proprietors. They must own the servient tenement in order to give an easement over the servient tenement.'"

In Gale on Easements 13th Edn. p. 144 it was stated:

".....as such user is only evidence of a previous grant - and as the right claimed is in its nature not one of a temporary kind, but one which permanently affects the rights of property in the servient tenement - it follows that by the common law such grant can only have been legally made by a party capable of imposing such a permanent burden on the property, that is, the owner of an estate of inheritance."

This is sufficient to dispose of respondent's claim without taking the matter any further. The right sought can only be established against the native owners. We pass no opinion on the position of the Native Land Trust Board vis-à-vis the native owners concerning the legal ownership of the land because the interposition of Native Land Trust Board as the statutory body having the control of native lands vested in it, does not affect the present case. The owners of the fee simple are not parties so no declaration could, in any event, be made against their interests. We refrain from any further comment on the special statutory provisions enacted for the protections of native land.

As stated at the hearing the appeal must be allowed with costs to appellant. The judgment in the Supreme Court is set aside and the case will be remitted to the Supreme Court for judgment to be entered for appellant with costs.

JUDGES OF APPEAL
Suva