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Lal v Native Land Trust Board [2011] FJCA 37; ABU0025.2009 (1 June 2011)

IN THE COURT OF APPEAL, FIJI ISLANDS
AN APPEAL FROM THE HIGH COURT


CIVIL APPEAL NO. ABU0025 OF 2009
[High Court Civil Action No. HBC 230 of 2000]


BETWEEN:


SHANTI LAL
Appellant


AND:


NATIVE LAND TRUST BOARD
First Respondent


AND:


APISAI and BANSI
Second Respondent


CORAM: Hon. Justice Izaz Khan, Justice of Appeal
Hon. Justice William Marshall, Justice of Appeal
Hon. Justice Pradeep Hettiarachchi, Justice of Appeal


COUNSEL: Mr. V. Mishra for the Appellants
Ms L. Macedru for the 1st Respondent
Mr. K. Vuataki for the 2nd Respondent


Date of Hearing: Friday, 20th May 2011


Date of Judgment: Wednesday, 1st June 2011


JUDGMENT


Izaz Khan, JA


  1. This is an appeal from Her Ladyship Phillips, J sitting in Lautoka regarding issues in relation to land situated at Solovi, Nadi. The Land in dispute comprised of 3 ½ acres of partly residential and partly farming area and 10 acres of sugarcane farmland.
  2. The appellant purchased the land from his mother-in-law Subhaga Devi with the consent of the NLTB which was granted on 22nd August 1985. The transfer stated the area of the land as 13 acres and carried the reference number 4/10/3877.
  3. The appellant received a letter from the Regional Director (Western) of the NLTB dated 30th July 1998 advising him that he only had a lease of 3 acres and not 13 acres. The letter is annexure "C" to Shanti Lal's affidavit of 14th July, 2000. It also bears NLTB Ref: 4/10/3877. The appellant said at paragraph 8 of his affidavit of 14th July 2000 that he had been paying rent to the NLTB for 13 acres which he claimed to have purchased. He said that in 1986 the rent was $75.00 and it was increased to $355.00 by a re-assessment made in 1995.
  4. There is a letter from the NLTB at page 41 of the Record which is headed:

Re-Assessment of Rented Agriculture Land. It describes the area as 13 acres, gives the NLTB No. 4/10/3877 and notifies the appellant that the rent of the said holding had been reassessed at $355.00 per annum.


  1. The appellant claims that the enjoyment of his residence and farm was constantly and substantially interfered with by the second respondents. He describes such interference at paragraph 13 to 20 inclusive of his affidavit where he says that in 1997 he had been evicted from his land for a period of 13 months, the house had been rented out to a Korean businessman, and substantial damage had been done to the contents including building materials, tools and equipment which he used in his other profession as a joiner. The respondents had re-taken possession of his property in 2000 as well.
  2. Other incidents of interference are described in this affidavit and the appellant claims that such action by the second respondents was taken with the tacit support of the NLTB. He gives as an example of such support the service of a Notice to Vacate served upon him by the NLTB on 2nd July 2000. The Notice is dated 30th June 2000 addressed to the appellant and is headed: "Date of Expiry of Lease & No Right of Renewal". The notice demands a compensation of $35,000 for damage to land and possession within 30 days from the date of receipt of the Notice. It is signed by the Regional Director (Western), Semi Tabakanalagi and copies are sent to various organizations including Turaga ni Mataqali Bua, Tokatoka Vunaboboi, Nawaka Village. The appellant's lease land had not yet expired and he had a twelve month grace period under ALTA. The lease expiry date was 1st January, 2001. The appellant had twelve months grace period from that date under Section 9(1)(f)(iii).
  3. The appellant had claimed damages for breaches of lease and statutory duties by the NLTB and damages for trespass and conversion of goods by the second respondents.
  4. Her Ladyship Phillips, J dismissed the appellants' action against the NLTB but awarded damages against the second respondents in the sum of $20,000 which was arrived at by awarding damages of $15,000 as aggravated damages for trespass and $15,000 for conversion of the plaintiff's goods which totaled to $30,000. This was reduced by $10,000 for the appellants' breaches of the terms of his tenancy.
  5. The appellant has asked this Court to reverse the judgment of the trial Judge and make orders in his favour based upon the first respondent's mistaken conduct in relation to the area to which the appellant was entitled and in failing to give the appellant compensation under Section 40 of ALTA. He also claimed that the trial Judge had erred in the damages she awarded to the appellant for the second respondent's trespass and conversion.
  6. The first question which I need to consider is whether the appellant was entitled to 3 ½ acres or 13 acres of agricultural land.
  7. It appears that part of the reason for the NLTB being unsure of whether the appellant had a lease of 3 ½ acres or 13 acres was caused by the fact that 10 acres of the land comprising the 13 acres claimed by the appellant had reverted to Native lease from CSR lease some years ago. In the Record there is a document headed: "STATISTICAL INFORMATION SHEET" NLTB No. 4/10/3877, which states the area of land as 13 acres and in the attached handwritten report the following statement is made:

"Rent Assessment carried out in 1985(W/42670) was for 3 acres only and Sales Analysis which stated that extra 10 acres was Crown Land.


Checked Recording Sheet (H18/1) together with Draughtsman V. Sau and confirmed that the whole area is under Native Land. This was also checked with Surveyor D.S.Prasad who stated that whole 13 acres is Native land."


  1. At page 375 of Volume 2 of the Record is to be found a letter to Subhaga Devi from the NLTB dated 6th January 1977 in which she is given the permission to occupy 3 ½ acres of land. The reference number again is 4/10/3877 and on the second page is to be found the following comments from Mr E. Chang, Divisional Surveyor Western.

"However, T.A.W. is made out to Subhaga Devi who I presume, holds an approval for 10 acres lease (C/N 2286).


It should be obvious here that we are awaiting new tenancies in CSR's reverted leases which means fragmenting existing holdings for long term leases..."


  1. It appears quite certain to me that the NLTB either knew or certainly ought to have known that part of Subhaga Devi's holding was 10 acres of converted lease from the CSR. It is clear that the NLTB treated the 3 ½ acres with the 10 acres in whatever it did either separately or together because there was only the one file bearing reference no. 4/10/3877.
  2. With this knowledge, NLTB thought it fit to grant consent to Subhaga Devi to assign her interest to the appellant. The consent is in respect of 13 acres and is required by Section 12 of the Native Land Trust Act.
  3. Section 12(1) of the Native Land Trust Act (1995) Cap 134 provides as follows:

"Except as may be otherwise provided by regulations made hereunder, it shall not be lawful for any lessee under this Act to alienate or deal with the land comprised in his lease or any part thereof, whether by sale, transfer or sublease or in any other manner


whatsoever without the consent of the Board as lessor or head lessor first had and obtained."


  1. There is no doubt that any transaction conducted without the consent required by Section 12 is null and void and of no use to the transferee. Accordingly, it would be reasonable to expect that the consent given by NLTB for the transfer of Native lease would be prized highly by the transferee of the lease who would be entitled to assume that the consent signified the affirmation of NLTB to the propriety of the transfer.
  2. I am fortified in this conclusion when I consider that the NLTB in its dealings with Subhaga Devi and the appellant used the one file numbered 4/10/3877 whenever dealing with the 3 ½ acres or the larger 13 acres. It knew or ought to have known that the larger 10 acres were CSR lease reverted to Native lease as indicated by the STATISTICAL INFORMATION SHEET and the statement of Mr E. Chang, Divisional Surveyor Western. Further it had increased the rent from $75 per annum to $355 per annum by reference to 13 acres as shown by the letter at page 41.
  3. In addition, there is the consent given by NLTB to the appellant for the mortgaging of the land which can be found at page 388 of Volume 2 of the Record Book. Again, the same could be said about this consent as was said earlier in relation to the consent for the assignment of the lease.
  4. In addition to these matters there is a lot of confusion in the file of the NLTB in relation to the 3 ½ acres and 13 acres which, as I said before, are both dealt with in the same file no. 4/10/3877. For example, in the inspection report to be found at page 370 of Volume 2 of the Appeal Book there is reference to 10 acres in the space for Area and on the next page in the document headed PRECIS and RECOMMENDATION the area is listed as 3 acres. At page 375 of the same record book the area is stated as 3 acres. In the application for consent to mortgage at page 388, the area is 3 acres and at page 390 in the Statistical Information Sheet the area is 13 acres. In the reassessment of rent found on page 41 of Volume 1 of the Record the area is listed as 13 acres and in the Notice to Vacate at page 42 the file number is listed as 4/10/3877.
  5. The last sentence on that page reminds the appellant that he is in breach of lease by being in arrears of rent which it refers to as being $355 per annum. It will be recalled that this was the re-assessed rent for 13 acres as stated in the document headed Re-Assessment of Rent of Agriculture Holdings in NLTB File No. 4/10/3877 at page 41 in Volume 1 of the Record.
  6. The appellant has said that the Mataqali was encouraged to take possession of the 10 acres in dispute by, for example, sending them a copy of the premature notice to vacate and demand for compensation. I am of the opinion that the appellant could have been correct. I can only hope that the NLTB which is the custodian of native land will not behave in that way again in these advanced times when standards of equality of races prevails and attempts are being made to use land effectively and more equitably.
  7. At paragraph [28] of her judgment, Phillips, J said:

"It is apparent from the totality of the evidence that the consent to the assignment was made under a common mistake as to titles."


I do not think it is necessary in this case to look at the mistake in the context of the usual contractual jargon. In my view, the totality of the circumstances clearly indicate that there was mistake on the part of the NLTB. I cannot see any mistake on the part of Subhaga Devi and on the part of the appellant both of whom regarded themselves as being entitled to 13 acres of land.


  1. The immediately preceding paragraphs show clearly that the NLTB was confused and mistaken about the size of the holding which the appellant had.
  2. The fact that it consented to the assignment of 13 acres in circumstances where NLTB's consent was determinative of the validity of the assignment, there is little doubt in my mind that the NLTB made an implied representation that the land which had been transferred to the appellant was 13 acres.
  3. In paragraph [28] the trial judge continues:

"Miss Devi could not have assigned an additional 10 acres in respect of land over which she held no legal interest. Her prior use of the additional 10 acres of land to cultivate cane was done without any contract of tenancy or any other instrument of title, lawfully authorizing her to do so. Notwithstanding


that the subject 10 acres may have been a former CSR lease which reverted to Native Reserve, she could only have a legitimate claim to her use of it if she held an instrument of title over this land. This land was never leased to her by the NLTB. She could not have assigned to the plaintiff a greater right or interest than what she has held possessed at the time."


  1. The trial judge may have been correct when she said that there was no document of title in respect of the 10 acres. But the fact remains that the NLTB knew that Subhaga Devi and later the appellant had been using the full 13 acres of the land and it has already been demonstrated that the NLTB had used one file number for both the 3 ½ acres and the 10 acres and had represented, by consenting to the assignment of the transfer from Subhaga Devi to the appellant, that the land to which the appellant was entitled was 13 acres. The rent had been substantially increased for 13 acres.
  2. In these circumstances, it is not open to the NLTB to complain that the appellant was only entitled to 3 ½ acres of land and not 13 acres. It is estopped from doing so.
  3. Therefore, the appellant was entitled to the occupation of 13 acres. If he did not have legitimate documentary title to the 10 acres to which the trial Judge has referred, it was incumbent on the NLTB to furnish him with one. They were certainly not entitled to assert that as he only had documentation for lease of 3 ½ acres he was only entitled to 3 ½ acres and not 13 acres which was claimed by him.
  4. The next issue which arises is whether the appellant is entitled to be paid compensation pursuant to the provisions of Sections 40(1) of the ALTA. That section provides as follows:

"40.-(1) Where the tenant of an agricultural holding has, after the commencement of this Act, made or caused or permitted to be made, thereon any of the improvements specified in the Schedule, he shall, subject as is in this Act mentioned, whether the improvement was or was not an improvement


which he was required to make by the terms of his tenancy, be entitled, at the termination of the tenancy, to obtain from the landlord as compensation for the improvement such sum as fairly represents the value of the improvement to an incoming tenant:


Provided that the tenant shall not be entitled to obtain compensation unless the consent or notice required to be obtained or given as specified in the Schedule has been so obtained or given and unless the tenant has, where requested by the landlord, served upon the landlord, within one month of the completion of the improvement, notice informing him of such completion."


  1. It is clear from the second paragraph of this provision and paragraph(1) of Part 1 of the Schedule that the erection, alteration or enlargement of buildings required for the efficient operation of the holding without the consent or notice in accordance with the Schedule having been obtained from the authority mentioned in the Schedule disentitles the lessee from payment of compensation under Section 40.
  2. It is clear from the INSPECTION REPORT at page 370 of the Record that on 23rd September 1970 in respect of the 10 acres of land there were existing buildings on the land and these are itemized in paragraph 6 in the handwriting of the person who made this report.
  3. Clearly, the appellant would not be entitled to compensation for any buildings which he erected or extended without the consent of the relevant person mentioned in Section 40 and the Schedule of the ALTA. However, he would be clearly entitled to compensation for any buildings which existed prior to him becoming the owner of the subject land because those buildings were there when he became the owner so long as he did not alter or extend them without any consent.
  4. There was some controversy at the trial of this matter as to whether the first respondent had proved that the structures on the subject land had been erected without consent. It seems to me that the matter was put beyond dispute when the appellant admitted that he did not have any consent as required. This is made clear by the trial judge in her judgment at paragraph [35].
  5. It is clear from the provisions of Section 9(1)(f)(i) that the lessee is entitled to enjoy quiet possession of the land so long as he has paid the rent and complied with other conditions of the lease.
  6. It seems to me that the appellant is entitled to damages for the first respondent's breach of his right to quiet enjoyment of the land and for the trespass to the land by the second respondents' and their conversion of the appellant's goods which included his tools of trade in the joinery business with which he was involved.
  7. The damages for the breach of its obligations to give the appellant quiet enjoyment of the land, would clearly include the damages he suffered in failing to carry out his cane farm whilst he was ousted from possession of the land by the second respondents. These damages would include the loss of income from the production of sugar cane, farm animals, fruit and vegetables. They will also include damages for psychological trauma which he must have suffered when he was forcefully evicted from his land by the second respondent. These damages should be ordered against both respondents jointly and severally because the damages are common to the breach of the lease for quiet enjoyment and for trespass to land both of which disabled the appellant from farming his land.
  8. As for damages in relation to the trespass and conversion committed by the second respondent, the first point which ought to be clarified is that the second named respondents were, in my view, representatives of the Mataqali Bua. It is most unlikely that they had acted for themselves. They had not only claimed rights for the Mataqali but also had defended the appellant's action and filed a counter claim alleging damage to 10 acres of Mataqali Bua's land. These matters indicate strongly that they were acting for themselves as well as for the Mataqali Bua.
  9. As for damages for their trespass to land and conversion of the appellants' goods, in my view, there should be damages in favour of the appellant involving the financial loss he suffered from replacing or repairing any structure upon the land and the replacement or repair value of any goods thereon.
  10. Further, there ought to be damages for the appellant against the First and Second Respondents jointly and severally for the losses he has suffered in failing to be able to use items of machinery which he purchased for the farming of his land.
  11. The appellant should be awarded all costs and expenses he incurred as a result of being evicted from his land against both respondents jointly and severally.
  12. The appellant should get interest on the total damages pursuant to the Law Reform and (Miscellaneous Provisions) (Debt and Interest) Act.
  13. In my view, the First Respondent's conduct was oppressive and incompetent. It should pay exemplary damages in the sum of $20,000.
  14. The question the quantum of damages is beyond this court for determination. It will be referred to the Master for assessment on proper evidence and it is recommended to the Master that apart from some guidelines as set out by me to what damages are permissible here, the Master should rely on his own enquiries and discretion in coming to his full and final assessment between the parties. The appellant is not entitled to double damages.

William Marshall, JA


42. I agree with the judgment and reasons of Izaz Khan JA.


Pradeep Hettiarachchi, JA


43. I also agree with the judgment and reasons of Izaz Khan JA.


Izaz Khan, JA

ORDERS OF THE COURT


  1. Accordingly the following orders are the orders of the Court:-

Hon. Justice Izaz Khan
Justice of Appeal


Hon. Justice William Marshall
Justice of Appeal


Hon. Justice Pradeep Hettiarachchi
Justice of Appeal

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