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Court of Appeal of Fiji |
IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT
CIVIL APPEAL NO. ABU0011/11
(High Court No. HBC 118 of 1996 at Lautoka)
Between :
KANIAPPA REDDY (deceased)
His executrix Chandra Kanta was substituted
1st Appellant
SUBARMANI REDDY
2nd Appellant
And:
RAJEND KUMAR
Respondent
Coram : Calanchini AP
Chitrasiri JA
Wati JA
Counsel : Ms. V Patel for the Appellants
Mr. R Singh for the Respondent
Date of Hearing : 18th May 2012
Date of Judgment: 08th June 2012
JUDGMENT
Calanchini AP
I agree with the reasons and conclusions of Chitrasiri JA.
Chitrasiri JA
[1] Before I venture into the merits of this appeal, I would like to make a preliminary observation as to the way in which the caption appears in the Appeal Record. In that caption, 1st appellant is named as Kaniappa Reddy (deceased) His executrix Chandra Kanta was substituted. When a party to an action dies, the person who comes to his/her shoes in accordance with the law should be the party responsible in proceeding with the action and it should reflect in the caption as well. Therefore, name of the 1st appellant should, in this instance read as Chandra Kanta as the executrix of the deceased plaintiff Kaniappa Reddy – 1st Appellant.
[2] I shall now examine the matters connected with the appeal filed against the decision of the learned High Court Judge. This is an appeal seeking to set aside the judgment dated 16th February 2011 delivered in the High Court at Lautoka, wherein the learned High Court Judge decided the case in favour of the Plaintiff who is the Respondent in this appeal. In that judgment, the 1st and 2nd Defendants who are the two Appellants in this matter were directed to effect the transfer of the land referred to in the Land Sales Agreement put in suit which comprise ¼ of an acre in extent.
[3] Defendant Kaniappa Reddy (1st Appellant) and Rajend Kumar, the Respondent entered into the aforesaid agreement put in suit. In terms of this agreement dated 11th May 1992, the defendant alleged to have sold 1/4 of an acre of land referred to in clause 3 therein to the plaintiff, subject to the consent being obtained from the Director of Lands. Admittedly, obtaining consent from the Director when such a sale is taken place is a statutory requirement though such a condition is found in the said agreement as well.
[4] The property subjected to this sale was described as; "1/4 acre which has been surveyed by the parties showing on lot 3, Plan Ref. SO126 known as Nacaqara and Navo in the Tikina of Nadi, in the Province of Ba", in the Sales Agreement even though no plan was attached to this agreement. Admittedly, $3,000 had been paid by the plaintiff to the 1st defendant as the consideration for this transaction. Possession of the land is to be given to the Purchaser upon receipt of the consent from the Director of Lands and to effect the registration thereafter.
[5] Pursuant to the sales agreement being signed, an application to obtain the consent of the Director of Lands to transfer the property in the name of the respondent had been sent in the prescribed form. This joint request was made by the document dated 13th May 1992, with a covering letter issued by their sales agent Dass Travel Agency. No decision is made by the Director of Lands on the said joint application sent on the 13th May 1992 as yet.
[6] Even though the Director of Lands had not given his consent to effect the transfer, the Respondent decided to file action to have the transfer of the property registered on the strength of the terms and conditions contained in the said Land Sales and Purchase Agreement dated 11th May 1992. Though this action was filed by way of writ of summons dated 28th March 1996, the trial has begun only on the 3rd May 2010, after a lapse of more than 14 years. The learned High Court Judge having recorded the evidence of the Respondent and of another witness from the Department of Land, permitted the parties to file submissions since there were no witnesses called on behalf of the Appellants. Thereafter he delivered the judgment on 16th February 2011 directing the Appellants to effect the transfer of the land registered in the name of the Respondent. It is against this judgment this appeal had been filed.
[7] In the notice of appeal, 11 grounds have been advanced as the grounds of Appeal. However, when the hearing of the appeal was taken up, the matter was argued basically on three issues consolidating all 11 grounds into those three. Those three issues can be summarized as follows:
(i) Whether the learned High Court Judge erred in law and in fact in holding that the circumstances of the case amount to the consent been granted by the Director of Lands as required by Section 13 of the Crown Lands Act (Cap.132).
(ii) Whether the learned High Court Judge erred in law, by failing to consider the provisions of Section 3 and 4 of the Subdivision of Land Act, (Cap.140) when he made the orders for specific performance in accordance with the Land Sales and Purchase Agreement dated 11 May 1992.
(iii) Whether the learned High Court Judge erred in law and in fact by misdirecting himself when he decided that pleading of the defence "pleane administravit" does not apply in this instance.
[8] The first ground on which this appeal was argued is on the question of consent of the Director of Lands being obtained in terms of Section 13 of the Crown Lands Act. This section reads thus:
13.-(1) Whenever in any lease under this Act there has been inserted the following clause: "This lease is a protected lease under the provisions of the Crown Lands Act" (hereinafter called a protected lease) it shall not be lawful for the lessee thereof to alienate or deal with the land comprised in the lease of any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever, nor to mortgage, charge or pledge the same, without the written consent of the Director of Lands first had and obtained, nor, except at the suit or with the written consent of the Director of Lands, shall any such lease be dealt with by any court of law or under the process of any court of law, nor, without such consent as aforesaid, shall the Registrar of Titles register any caveat affecting such lease.
Any sale, transfer, sublease, assignment, mortgage or other alienation or dealing effected without such consent shall be null and void.
[9] The above section of the Crown Lands Act, clearly stipulates that it is unlawful to alienate or deal with a land comprising a lease unless the written consent of the Director of Lands first had and obtained. It is further stated that any sale or transfer or other alienation or any dealing effected in respect of such land without the consent of the Director of Lands shall be null and void. Accordingly, a statutory bar is being imposed for the transactions or dealings affecting Government land or part thereof which is subjected to a protected lease unless and until the consent for such a transaction is obtained from the Director of Lands beforehand. Therefore, if any dealing in respect of a Government land is effected without the consent referred to above, such a transaction shall be considered ab intio void and has no effect or force in the eyes of the law.
[10] When looking at the said Section 13, it seems that the consent of the Director referred to therein should be given by him only upon considering the totality of the provisions contained in the Crown Lands Act. That power of the Director cannot be exercised by a person functioning in another capacity than of the Director of Lands. [Section 13(4) of the Act] However, it must be noted that it does not mean that the right to review decisions of the Director or the Minister, if there had been an appeal under Section 13(3) to the Minister, is taken away from the jurisdiction of Courts but of course subject to the provisions of the law prevailing in Fiji. Hence, the requirement to have the consent of the Director under the Crown Lands Act stands as a mandatory requirement before any transaction or similar dealing is effected in respect of a leasehold Government land.
[11] This position of the law in Fiji has been considered in numerous judgments. In the case of D.B. Waite (Overseas) Ltd v Sidney Leslie Wallath [1972] 18 FLR 141, the Court of Appeal, referring to Chalmers v Pardoe (1963) 3 All E.R. 552, has considered the consequences of not obtaining the consent from the Director of Lands when the Native Land was subjected to a sale. In the said case of D.B. Waite V Wallath [1972]18 F L R 141, it was held that "The agreement was one in which the parties intended to effect the transfer of the native lease after satisfying the requirements of the law as to the consent of the Native Land Trust Board;". Also, in the case of Reggiero vs Kashiwa (1998) FISC 8, the Supreme Court of Fiji has considered this question of law extensively. In fact this decision in Reggiero vs Kashiwa had been cited in the submissions of the learned Counsel for the Respondent as well. Moreover, in Phalad V Sukh Raj [24 F L R 170], again the Court of Appeal was of the view that the purchase agreement entered into by a lessee of a native lease was null and void for not having obtained the consent of the Native Land Trust Board. Similar issue had also been discussed in Jai Kissan Singh v Sumintra (1970)16 F.L.R. 165. Rational behind the granting of consent of the Government authorities is found in the judgment in Jennyne Gonzalez V Mohammed Akhtar and Haroon Khan [Fiji Supreme Court, Civil Appeal CBV 00011 of 2002S] In that case Section 6 (1) of the Land Sales Act was dealt with by the Supreme Court. Under the said Section 6(1), non-residents of Fiji are prohibited from purchasing lands without the prior consent in writing of the Minister responsible for land matters. Gonzalez was a citizen of the United States. He has entered into an agreement to purchase a land belonging to Mohammed. Gonzalez was to obtain various statutory approvals before he takes over possession of the land subjected to the sales agreement. Consideration for the transaction also had been paid by Gonzalez. The issue was the consent of the Minister referred to in the said Section 6(1) of the Land sales Act. The Supreme Court having concluded that the agreement was unenforceable without the consent of the line Minister had stated:
"118. A contract entered into in breach of s 6(1) is, in our view, a clear example of a contract expressly prohibited by legislation."
[12] In the authorities cited above, it had been held that any kind of a transaction affecting native leased land is null and void unless the Director of Lands has consented for such a transaction.
[13] Learned High Court Judge seems to have been under the impression that when the consent to file action under the latter part of the same section 13 of the Crown Lands Act had been granted by the Director, it would amount to have given the consent of the Director to deal with the sale of the land in dispute. The said latter part of Section 13 reads thus:
'"nor, except at the suit or with the written consent of the Director of Lands, shall any such lease be dealt with by any court of law or under the process of any court of law,"
The aforesaid view of the learned High Court Judge is evident by the contents in paragraph 42 of the impugned judgment where he has stated: "Now that the consent of the Director of Lands has been given, a transfer thereafter would not be null and void nor would the Agreement to transfer which preceded it". This decision of the learned Judge has been made relying upon the letter dated 25th May 2010 in which the Director has granted permission, only to file action in Courts and clearly it is not for any other purpose.
[14] When looking at the provisions in the Crown Lands Act, it is clear that the Director of Lands should consider all the circumstances of a given situation in accordance with the basis stipulated in the Crown Lands Act, before he consents for dealings such as a sale, transfer or sublease affecting leased Government land. Similarly, a different basis is applicable under the same Act when granting consent of the Director to file action in respect of such a land. In the circumstances it is clear that the decision of the learned High Court Judge to decide that the consent to file action amounts to consent been given to transfer the property to the respondent is erroneous. It is important to note that in the event a proposition similar to the one taken by the learned High Court Judge is accepted then it may probably amount to taking over the Role of the Executive by the Judiciary.
[15] The next issue is the failure of the learned High Court Judge to consider the matters contained in Sections 3 &4 of the Subdivision of Land Act (Cap 140). The said section 3 is the interpretation section where the word "subdivide" is interpreted.
In that Section it is stated;
"subdivide" means dividing a parcel of land for sale, conveyance, transfer, lease, sublease, mortgage, agreement, partition or other dealing or by procuring the issue of certificate of title under the Land Transfer Act in respect of any portion of land, or by parting with the possession of any part thereof or by depositing a plan of subdivision with the Registrar of Titles under the last mentioned Act; and the corresponding noun shall be construed accordingly."
Section 4 reads thus:
"4. Notwithstanding the provisions of any other law for the time being in force no land to which this Act applies shall be subdivided without the prior approval of the Director to be obtained in the manner hereinafter prescribed."
[16] Admittedly, the land in dispute is subjected to the provisions in the Subdivision of Land Act. [Cap 140] In terms of the provisions in the Subdivision of Land Act, prior approval of the Director of Town and Country Planning is necessary to effect a transfer of a subdivided portion of a larger land. Land claimed by the responded is said to be portion in the extent of ¼ an acre of a larger land. No evidence is forthcoming to establish that a plan showing a subdivided piece of land in the extent of ¼ of an acre had been submitted enabling the Director to consider granting his consent in terms of Section 4 of the Subdivision of Land Act. In fact the respondent under cross examination has clearly said that no plan was made to show the subdivided land that he purchased. [Page 151 of the Record] Therefore, it is erroneous to make an order for specific performance by directing the appellants to effect the transfer of the land relying upon the conditions of the Land Sales Agreement entered into between the defendant (deceased 1st appellant) and the plaintiff (respondent).
[17] Learned Counsel for the respondent contended that physical demarcation of the land on the ground would constitute a subdivision referred to in the said Section 4 of the Act. Document 8 in the Agreed Bundle of Documents seems to suggest that a survey had been carried out to demarcate the subdivision of the land in dispute. However, the said Document 8 is a plan made to show a land with an extent of 6.1729 hectares. In that plan, the land in question is shown by way of a very small circle without even having any boundaries to the land alleged to have bought by the respondent. However, even if the land was identified physically on the ground, such identification is insufficient for the purpose of section 4 of the Subdivision of Land Act. Therefore, this Court is not inclined to accept that there had been a proper sub division of the land in terms of the Section 4 of the Subdivision of Land Act, merely because there was a division physically made on the ground.
[18] Accordingly, it is clear that the requirement to have the approval of the Director in terms of Section 4 of the Subdivision of the Land Act had not being obtained in this instance. This requirement also being a statutory requirement, High Court Judge should have properly considered this aspect. Unfortunately, learned Judge had not looked at this aspect, required by law when he made his findings on the issue. In the circumstances, the issue as to the said approval referred to in the Subdivision of Land Act should have been decided in favour of the appellants. Therefore, the decision of the learned High Court Judge in this regard cannot be sustained.
[19] The last issue is on the defence of "pleane administravit" pleaded by the respondents in their statement of defence. Admittedly, the 1st appellant had died on 29.10.2003 well before the pre trial conference was held. This fact is evident by the affidavit filed at page 212 of the record. Letter dated 15.08.2006 written by the Solicitors of the appellants to the Solicitors of the respondent, shows that the final distribution of the estate of the deceased defendant had already been concluded having administered his Last will. The land in dispute, being a part of the estate of the deceased defendant, had been transferred to one of the beneficiaries namely the 2nd appellant upon writing deeds of renunciation by the other beneficiaries of the deceased defendant. There is no evidence to establish that the respondent had made any claim in those testamentary proceedings in order to claim his rights.
[20] Be that as it may, it is the law that the proving of ownership of assets casts upon the Plaintiff in an action when the defence of "pleane administravit" is pleaded in a statement of defence. This principal is referred to in Halsbury's Laws of England Vol. 17 (4th edition) at para.1580. This paragraph states:
"A person sued as personal representative may in general plead in answer to an action brought against him in his representative capacity any defence which would have been open to the deceased. He may further rely upon the defences (1) that he was never executor or administrator (ne unques executor) (2) that he has fully administered (plene administravit praeter) (3) the existence of debts of a higher nature and not assets ultra; (4) the right to set off a debta; and (5) the expiration of the appropriate period of limitation.
If the defence of plene administravit or plene administravit praetor is pleaded, the burden of proving assets rests upon the plaintiff and the personal representative is only answerable to the amount of assets proved."
[21] The learned High Court Judge has misunderstood this principle though the record speaks as to the death of the 1st appellant that had happened well before he took up the trial. The defendant Kaniappa Reddy had died on 29.10.2003. In such a backdrop, the Respondent should have taken steps to substitute the Administrator of the Estate of the deceased defendant soon after the death of the defendant which fact was within their knowledge, at least after they received the letter dated 27.07.2006 sent by the Solicitors of the appellants. [Vide folio 200 of the record]. Instead the Respondent has merely added the 2nd appellant who did not represent the estate of the deceased defendant, as a party to the case.
[22] Even though the 2nd appellant was made a party to the action, the respondent being the plaintiff who added him to the case, has not taken steps to amend his statement of claim disclosing a cause of action against the 2nd appellant. Therefore it is clear that no cause of action has been pleaded in this case against the 2nd appellant. The learned High Court Judge has not addressed his mind at all to this point. Had he looked at this aspect, he would not have made any finding against the 2nd appellant. Without a cause of action being pleaded, it is unlawful to allow the judgment against the 2nd appellant to stand as it is.
[23] For the aforesaid reasons, all the issues raised in the grounds of appeal should be decided in favour of the appellant. Accordingly, the judgment of the learned High Court Judge dated 16th February 2011 has to be set aside.
[24] Apart from the matters raised in the grounds of appeal, Court is of much concern over the $3000.00 paid by the respondent as the consideration for this dealing. The decision that is being pronounced today does not contain any discussion on the said $3000.00 given to the deceased defendant. Parties have not raised this issue neither in this Court nor in the Court below. It had not been pleaded either. Therefore, the Court decided not to venture into the merits of the issue of making payment of $3000.00 referred to above.
Wati JA
I have had the opportunity of reading the judgment of His Lordship Justice Chitrasiri and I concur with the reasons and outcome of the appeal.
Orders of the Court
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HON. MR JUSTICE W.CALANCHINI AP
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HON. MR JUSTICE K.T. CHITRASIRI JA
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HON. MADAM JUSTICE A. WATI JA
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