(d) Civil action no. 254 of 1992 dated 21 May 1992; filed in the High Court by the Applicants; the Judgment of which is the subject
os appeal.
Civil Action no. 254 of 1992
A. Judgment of Scott J. dated 10 May 1994
This judgment considered the following preliminary issues -
(a) whether Lease No. 53574 was or is subject to the provisions of ALTA;
(b) if so, whether the said lease was properly terminated by the First Defendant by the notice to quit dated 22 April 1985; and
(c) if so, whether any right of relief against forfeiture or other right subsists in the Plaintiffs.
The learned Judge decided the first of those issues on the basis that the disputed land had always been rural and therefore classified
as agricultural. As a result he determined that it came within the provisions of the Agricultural Landlord and Tenant Act (Cap. 270) (hereinafter referred to as “ALTA”) and as a consequence it was not necessary for the status of the land to be determined
by the Agricultural Tribunal. He went further and found that this land known as “Bala” did not fall within the exemption provisions
of Section 3 subsections 1 (a) to (c) of ALTA. Accordingly His Lordship determined that Lease no. 53574 was subject to the legislative
provisions of ALTA.
The second issue, as one would expect, required a detailed consideration of the notice to quit dated 22 April 1985. This had been
issued 9 years earlier. The appellants challenged the legality of that notice both as to its form and the method of its service.
On the other hand the first respondent relied upon its legal efficacy in order to support the actions he had initiated under the
provisions of the Land Transfer Act (Cap. 131) and which had resulted in the Registrar of Titles cancelling and removing from the Title the appellants lease no. 53574.
The Court below in deciding against the appellants held that the lease had been properly terminated by the notice to quit issued 9
years earlier and that the first respondent was not estopped from relying upon it nor had he waived his rights as alleged by the
appellants. Whether the notice to quit and non compliance with it in fact terminated the lease is a matter we will discuss in further
detail later in this judgment when we consider the issue of waiver.
The third issue was summarily dismissed by the learned Judge on the grounds that the appellants had failed to apply for relief against
forfeiture before the expiration of the notice to quit as required by the provisions of ALTA in that regard.
B. Ruling of Scott J. dated 22 September 1994
The appellants initiated proceedings seeking consolidation of actions 854 of 1985; 422 of 1988; and 254 of 1992 which were all then
current and pending in the High Court.
That application was dismissed not only because different Solicitors were involved in the various actions but also because of the
unrelated format of the proceedings themselves.
C. Judgment of Scott J. dated 2 December 1994
This Judgment considered whether the Registrar of Titles “...... acted lawfully when on the 7th and 8th of May 1992 he accepted and
acted upon a notice of application for cancellation of lease sent to him by the first defendant under the provisions of section 57
of the Land Transfer Act (Cap. 131) resulting in the cancellation of the lease in question namely Lease no. 53574..........”
As a result of a careful analysis of the provisions of s.57, Scott J. found, quite correctly we agree, that the cancellation of the
appellants lease was premature and they were therefore deprived of the opportunity to apply for relief against the forfeiture of
their lease. He accordingly granted the declaration applied for and declared that the second respondent had unlawfully purported
to register the re-entry and cancellation of Lease no. 53574. The second respondent then reinstated the lease on the Land Transfer
Register.
It is against that background that this appeal is brought against the Judgment of Scott J. dated 2 December 1984 and which incorporates
his Judgment on the preliminary issues delivered on 10 May 1994, and his ruling dated 22 September 1994.
Rulings preliminary to the substantive appeal
(1) Counsel for the first respondent by notice of motion dated 18 February 1998 sought leave to adduce fresh evidence from the first
respondent in the form of a lengthy affidavit with annexures “A” to “R” attached. Counsel subsequently elected not to proceed with
that application, which was dismissed.
(2) Counsel for the first respondent objected that “the appeal per se is a time barred nullity because of the futile filing of the
notice of appeal after the expiry of the statutorily mandated period allowed.”
We disallowed that objection. We accepted Mr Sharma’s oral application and granted the leave he sought to proceed with the appeal.
We indicated that we would give our reasons for that decision and this we now do.
The Judgment appealed against was sealed on 7 February 1995. Counsel for the appellants accepts that his appeal is against an interlocutory
order. Rule 12(2)(f) of the Court of Appeal Rules provides that there shall be no appeal against an interlocutory order “without
the leave of the Judge or of the Court of Appeal.” The Judge did grant leave to appeal on 3 July 1995
and notice of appeal was filed on the same day. There was no objection to the granting of leave to appeal on 3 July 1995, or at any
subsequent hearings associated with the procedural matters to this appeal. Indeed at the hearing on 3 July 1995, Counsel for the
first respondent is recorded as having submitted -
“We were under the impression that leave was required. We have concur that now no leave is required.”
The issue now raised is whether the court below on 3 July 1995, had jurisdiction to grant leave when the application was out of time.
Counsel for the first respondent accepts that
“The rules of the Court of Appeal do provide at Rule 27 for an enlargement of the time limits for filing a notice of appeal.”
That rule states -
“27. Without prejudice to the power of the Court of Appeal, under the Supreme Court Rules as applied to the Court of Appeal, to enlarge
the time prescribed by any provision of these Rules, the period for filing and serving notice of appeal under rule 16 may be extended
by the Court below upon application made before the expiration of that period.”
That Rule provides that the Court below has jurisdiction to enlarge the time prescribed by Rule 16 only if the application is “made
before the expiration of that period” i.e. in this instance on or before 28 February 1995. The court below therefore did not have
jurisdiction to grant the appellant leave to appeal out of time. However, subject to the principles that apply to an application
for leave to appeal out of time this Court’s power to grant such leave is not so limited. As well as Rule 27, Section 17 of the Court of Appeal Act (Cap 12) provides -
“Notwithstanding anything hereinbefore contained, the Court of Appeal may entertain an appeal made under the provisions of this Part
on any terms which it thinks just.”
This Court also has recourse to the practice and procedure of the Court of Appeal in England. Rule 7 of this Courts Rules provides
-
“7. Where no other provision is made by these Rules, or by any other enactment, the jurisdiction, power and authority of the Court
of Appeal and the judges thereof shall be exercised -
(a) in civil causes or matters, according generally to the course of the practice and procedure for the time being observed by and
before Her Majesty’s Court of Appeal in England;”
Order 3 r 5 provides -
“5- (1) The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or
authorised by these rules, or by any judgment, order or direction, to do any act in any proceedings.
(2) The Court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until
after the expiration of that period.”
The relative principles we are required to consider are -
1) The length of the delay;
2) the reasons for the delay;
3) the chances of the appeal succeeding if time for appealing is extended;
4) the degree of prejudice to the would-be first respondent if the application is granted.
We are of the opinion that this case does satisfy the above criteria. For those reasons we granted the leave sought.
(3) Counsel for the appellants by notice of motion dated 20 October 1997 also sought leave to adduce fresh evidence. By an interim
ruling we gave leave to call, by subpoena if necessary, a witness who could identify the land the subject of this appeal with what
we were told was “exempted” land. Mr Narayan a technician from the Lands and Survey Department was called to give evidence before
us. The maps and plans he produced certainly identified the land “Bala” and as well the “exempted area”. But no one plan showed those
areas superimposed so that their relationship and relative boundaries could be positively identified. Because of this uncertainty
we refused leave to produce the plan of exempted land referred to in the affidavit of Jagjit Singh. We were not persuaded that the
numerous other items of evidence exhibited in respect of which leave was sought were sufficiently relevant to justify their admission,
or were not available or could not have been discovered in time for the trial with due diligence. Accordingly we refused the application.
Having considered and explained those preliminary applications we now turn to consider the substantive appeal. The notice of appeal
sets out 12 grounds of appeal which, as can be appreciated, overlap in varying degrees. Counsel for the appellants in his helpful
skeleton submissions consolidated his grounds as follows:-
(1) Issues in relation to the notice to quit;
(2) Whether the lease could be terminated by a mere notice to quit;
(3) Issues of waiver and consolidation;
(4) Rights of relief against forfeiture.
Issues in relation to the notice to quit
The form of notice to quit issued by the first respondent on 22 April 1985 was in the following form-
“Denmark House
40 Weghorn Steet
Ipswich, Queensland 4305
AUSTRALIA
Mr. Bhagat Singh
P O Box 3623
Samabula
Suva
Fiji
NOTICE TO QUIT
TAKE NOTICE that as lessee of the land known as ‘Bala’ as contained in registered lease number 53574 you are HEREBY given three (3) months notice to Quit the said
land on the ground of contravention of the Agricultural Landlord and Tenant Act, namely placement of a first registered mortgage on the said lease without prior approval of the lessors.
However, should the said mortgage be removed from the said lease within the said three months, this notice shall be deemed cancelled
and of no force and effect.
.............G.S.
For lessors”
Dealing firstly with the form of such a notice. That was considered by this Court in the case of Ram Lochan Regan v. Satya Nand Verma 11 F.L.R. 240 which decided that while no particular form was required to constitute a valid notice to quit, nevertheless it was
necessary that the notice -
(1) be addressed to the right person;
(2) properly describe the premises to which it relates;
(3) be plain and unequivocal;
(4) expire at the proper time.
In the Court below the appellants submitted that the notice was invalid because the names of the “Lessors” were not specified in the
notice; the appellants were given no opportunity to remedy the alleged breach; and because no demand was made for monetary compensation.
As a result, so the appellants submitted, the notice was “equivocal and misleading.” Before us, Counsel repeated those submissions,
and embellished them. For example he referred to the name of the Lessor not being on the notice, although his address was.
He said that “this was defective in that the 1st respondent’s name was not registered against the Lease No. 53574 at the time the
notice was issued.” That submission is erroneous. The first respondent was recorded as the registered proprietor on 15 June 1978.
The notice was issued on 22 April 1985. If Counsel is relying on the caveat registered by the first respondent against the Lease
he is again incorrect - that was registered on 22 August 1984.
Finally, counsel, when dealing with the form of the notice submitted that it did not comply with the provisions of section 38(1) para
(a) (b) and (c) of ALTA, which provide as follows:-
“38(1) A right of re-entry or forfeiture under any proviso or stipulation in a contract of tenancy for a breach of any covenant or
condition, express or implied, in such contract of tenancy shall not be enforceable, unless and until the landlord serves on the
tenant notice-
(a) specifying the particular breach complained of; and
(b) if the breach is capable of remedy, requiring the tenant to remedy the breach; and
(c) in any case, requiring the tenant to make compensation in money for the breach, and if the tenant fails, within a reasonable time
thereafter to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money, to the satisfaction of
the landlord for the breach.”
But in the present case the notice clearly specifies the breach complained of viz. “......placement of a first registered mortgage
on the said lease without prior approval of the lessors;” and specifies how the breach is to be remedied viz. “........ removed from
the said lease within the said three months........” and makes no claim for compensation. It is well settled that omission from the
notice of any request for compensation does not invalidate the notice but merely disentitles the landlord from recovering compensation
in a subsequent action for forfeiture and damages for breach of covenant.
In our opinion there is no merit in the appellant’s submissions criticising the form of the notice.
The appellants however challenge not only the form of the notice but whether the notice is appropriate to a lease which is registered
under the Land Transfer Act. This challenge relies on the original registration of lease No. 53574 on 1 December 1953 under the provisions of the Land (Transfer
and Registration) Ordinance (Cap. 120). Originally the lease was for 21 years. Then on 12 July 1960 it was extended to a term of
99 years to issue from 1 January 1954. However, the ALTA legislation only came into force on 29 December 1967. It was on this basis
that the appellants in the court below originally challenged the applicability of the ALTA legislation and submitted that it was
the Land Transfer legislation that applied. Before us a further dimension was added by the attempt to introduce further evidence
to prove that this land was exempted from the provisions of clauses 6 - 7 and 13 of ALTA. The application to admit that further evidence
was refused. We are satisfied that the provisions of ALTA do apply to this land. Section 9(1) of that Act provides -
“The following conditions and covenants shall be implied in every contract of tenancy of an agricultural holding subsisting at or
after the commencement of this Act;-
