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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
[APPELLATE JURISDICTION]
Civil Appeal No. ABU 0091 of 2018
(HBC No. 0051 of 2016)
BETWEEN:
ALFAAZ ROUF ABDUL KHAN
Appellant
AND:
HASIM KHAN
Respondent
Coram : Almeida Guneratne, JA
Counsel: Mr. S. Kumar for the Appellant
Mr. A. Sen for the Respondent
Date of Hearing: 18 June, 2020
Date of Order : 06 July, 2020
RULING
[1] What is before me for determination is a leave to appeal application against an interlocutory ruling of the High Court of Fiji at Labasa dated 4 July, 2018 including all orders arising therefrom and for a stay of further proceedings in the said High Court action.
[2] There is also an application to lead fresh evidence in appeal filed of record which has been opposed by the Respondent. But, that is a matter for the full Court to consider in terms of Section 12(2) (f) (v) of the Court of Appeal Act (Cap.12) and Rule 22(2) made thereunder in the event of leave to appeal being granted.
Decisive criterion for granting Leave to appeal
[3] Whether a given application is for leave to appeal per se or for extension of time to appeal the decisive criterion is as to whether there are arguable issues for the full Court to go into in appeal thus reducing the other “criteria” sometimes referred to as “threshold criteria” to a misnomer (see: Engineer Procure Construct (Fiji) Ltd v Sigatoka Electric Limited; ABU 105 of 2016, 22 February, 2017 and the decisions referred to therein).
The Nature of the proceedings had in the High Court
[4] The Appellant (original plaintiff) instituted proceedings in the High Court initially by way of originating summons and then changed it to a writ action. The nature of the dispute stands revealed from the prayers urged in the statement of claim filed by the Appellant. The essential parts contained therein for the purpose of this application I reproduce thus:
“1. A declaration that Deed of Trust dated 22nd day of November, 2013 was
signed by Plaintiff and Defendant, is valid and binding upon the Defendant.
2. A Declaration that the Defendant holds Native Lease Number 17554 over
i-Taukei land known as Seaqaqa Township Lot 73 as shown on Lot 19 on Plan M2717 situated at Seaqaqa Township, Macuata in trust for
the Plaintiff and or Plaintiff’s nominee.
3. A declaration that the Defendant holds all proceeds and stock of Seaqaqa
Shopping Centre operating on premises on i-Taukei land at Seaqaqa Township, Macuata comprised in Native Lease Number 17554 for the Plaintiff”.
[5] Pending that proceeding the Respondent (original defendant) filed a summons in terms of Order 33 Rule 4 of the High Court (supported by affidavit) wherein he raised a question of law to be determined first before the action proceeds further by way of hearing viz: whether the ‘purported’ agreement and the ‘purported’ Deed of Trust described in the statement of claim were null and void because of Section 12 of the I-Taukei Land Trust Act (Cap. 134) which required consent of the Board as contemplated by the said Section 12 .
[6] Thereafter, the Appellant (plaintiff) in his affidavit in opposition deposed that:
“(i) The purchase of the lease was made through the funds he provided to the Defendant.
(ii) No consent is required for the Defendant to hold the lease on trust
as he (Plaintiff) acted on the advice of the NLTB.
(iii) The Plaintiff’s claim does not offend S.12 of the Act”.
[7] In its affidavit in reply the Respondent (defendant) took the position that:
“(i) He is not holding the (lease) in trust as he is the transferee of the
Lease.
(ii) The deed is fraudulent as he never executed the same.
(iii) The claim deals with the Plaintiff seeking a declaration in respect
of a native lease for which he has not obtained consent to the dealing”.
[8] The areas on which the parties were at variance and the nature of the dispute thus fell within that compass.
The decision of the High Court
[9] Based on those pleadings, the learned Judge after hearing submissions made by Counsel (both written and oral) reached the following conclusion.
“22. In the result, I find and I so hold that the oral agreement and the Deed of Trust referred to in the Statement of Claim are null and void as being in contravention of section 12 of the Act”. (that is, the i-Taukei Land Trust Act (Cap.134).
23. I have decided the questions of Law and the action should therefore proceed to trial. The costs of this summons shall be costs in the cause”.
Submissions made by Respective Counsel (both written and Oral)
at the hearing before me
[10] Before I proceed to give my mind to the submissions made by respective Counsel, I could not help but make the observation at the outset that, there appears to be a contradiction in terms of the said conclusion reached by the learned High Court Judge (supra Paragraphs 22 and 23 of his decision) His determination contained in paragraph 22 put the lid on the Appellant’s action. Then, what was there left to proceed to trial?” (Paragraph 23) At the trial so many contentions would have arisen for adjudication inter alia on viva voce evidence given the fact that the Respondent (a) denied being a signatory to the “First Deed” (b) alleged “fraud” in consequence thereto.
[11] Having said that, I come to the submissions made by respective counsel on what the learned Judge held in paragraph 22 of his Judgment.
[12] The determination by the learned Judge was based on the application of Section 12 of “the Act”.
[13] In support of their respective contentions, both Counsel relied on several past precedents of the Supreme Court and this Court such as Pacific Agencies (Fiji) Ltd v Spurling [2008] FJSC 27; CBV0007.2008S (17 October 2008); Graham v Inspired Destination (Inc) Ltd [2019] FJCA 175; ABU0123.2018 (20 September 2019) and i-Taukei Land Trust Board v Birges [2013] FJCA 105; ABU 006.2012 (3 October 2013) (among other precedents).
[14] The said rival contentions fell squarely within the provisions of Section 12 of “the Act”.
“Section 12:
Consent of Board required to any dealings with lease
12. - (1) 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. The granting or withholding of consent shall be in the absolute discretion of the Board, and any sale, transfer, sublease or other unlawful alienation or dealing effected without such consent shall be null and void:
Provided that nothing in this section shall make it unlawful for the lessee of a residential or commercial lease granted before 29
September 1948 to mortgage such lease.
(Substituted by Ordinance 30 of 1945, s. 8; amended by 29 of 1948, s. 3.)
(2) For the purposes of this section "lease" includes a sublease and "lessee" includes a sublessee.
(Inserted by Ordinance 35 of 1943, s. 2.)”
[15] The contentions advanced on behalf of the Appellant in seeking leave to appeal I summarise as follows:
“(i) The “trust deed” and the antecedent oral agreement the parties entered into that led to the “trust deed” did not fall within the meaning of “a dealing” as envisaged by Section 12 that required “Consent” by “the Board”.
(ii) “The Board” itself was of that view as evidenced form its letter dated 10 January,
2018 which is to the following effect:
I-TLTB LETTERHEAD
“10 January 2018
Mr Alfaaz Abdul Rauf Khan
Waiqele
LABASA
Dear Sir
Re: ALFAAZ ABDUL RAUF KHAN to HASIM KHAN
I refer to your letter of even date.
After perusing your correspondence and the trust deed dated 22nd November 2013 which was annexed thereto, kindly note that the consent of the Board will be required during the transfer stage from Mr. Khan to you.
In our view, the contents of your trust deed does not fall within the ambit of Section 12 of the i-Taukei Land Trust Act
Should you require further clarification, please do call us.
(Signed)
Mr. Josaia Waqairatu
Manager, [NORTH]”
(iii) (a) It is absurd to require consent of TLTB during pre 21s January,
2014 (para18 of Claim) being the date that Defendant became Lessee.
(b) There is no occupation of the leased land by Defendant nor change
of type of lease on records of TLTB.
(c) The Trust document does not transfer lease title to Plaintiff nor give him possession. So it is not in the same category as a sale, transfer or sub lease where consent is required.
(d) TLTB only stamped Trust Deed and has stated that it does not consider the Trust Deed as a dealing.
It is respectfully submitted that this honorable Court dismisses the Defendants Summons with costs on Indemnity basis and set a date for trial.”
[16] As against those contentions Mr. Sen (learned Counsel for the Respondent) contended
that:-
(a) The oral agreements spoken of by the Appellant were unenforceable in law since they related to land
(b) The Respondent did not sign the deed that purports to be “a trust deed” and therefore
(c) The Appellant has perpetrated a fraud on the Respondents.
(d) In any event, (without prejudice to (a), (b) and (c) above as I understood the tenor of Mr. Sen’s arguments) the alleged “trust deed” constituted “a dealing” as envisaged by Section 12 of “the Act” for which the Board’s consent was required and which was not given.
(e) “The Board” could not have unilaterally decided that consent was not required on the apparent premise that the “trust deed” did not come within the meaning of “a dealing”.
(f) The Appellant’s case was based on a proprietary interest in the land which he did not have and if it was supposed to be based on “an equitable interest” the same was not pleaded in his statement of claim.
(g) The Respondent is the registered owner of the property in question and remains in possession presently thereof.
(h) Consequently, Section 6 of the Land Sales Act (Cap.137) also could not have been by-passed for the Appellant to have vindicated his action.
[17] Mr. Kumar (learned Counsel for the Appellant) in his brief reply submitted that:-
(a) His client has invested a sum of $900, 000.00 to the running of a business on the property by the Respondent which invested him with a beneficial interest in the property (which Mr. Sen took exception to but conceding that only a sum of $13,000.00 had been paid by the Appellant.
Determination
[18] In the background of those rival contentions I looked at Section 9 of “the Act” and was left to conjecture as to how a person who holds a property in trust for a lessee of native land could have a bearing on that section. Likewise, Section 3 of the Agriculture Landlord and Tenant Act (Cap.270), Section 13 of the Crown (State) Lands Act, and Section 2 of the Land Transfer Act (Cap 131) which expressly defines “a dealing” I could not find any conclusive answer in regard to Section 6 of the Land Sales Act (Cap.137) as well.
[19] Consequently, I sought refuge in the dictionary meaning of “what is defined as “a deal” wherein it is stated that “it is an agreement entered into by two or more parties for their mutual benefit”. (Vide: Concise Oxford English Dictionary, (12th Ed, 2011). On the facts in the present case, that definition appeared to me as striking a chord with Section 12 of “the Act” which contains the phrase “or in any other manner”, which brings into reckoning the “eiusdem generis rule” which could well be held against the Appellant’s contention notwithstanding what has been urged in paragraphs 49 to 60 of his written submissions of March, 2018.
[20] Having said that, I also had regard to the time tested observation made by Lord Coleridge in R v. Peters [1886] 16 QBD 636 at 641 wherein His Lordship said:
(1) “Dictionaries can hardly be taken as authoritative exponents of the meanings of the words used in legislative enactments, for the plainest words may be controlled by a reference to the context. Similarly, lexicons would only define an expression in terms of a decision given by a court of law, and unless this decision was given under the Act in which the expression is used in it involves a dangerous method of interpretation.”
(2) In the same case, Cozens Hardy MR opined:
“It is for the court to interpret the statute as best as it may. In so doing the courts may no doubt assist themselves in the discharge of their duty by any literary help they can find, including of course the consultation of standard authors and reference to well-known and authoritative dictionaries.”
[21] In the result, still left in a quandary, I looked at some precedents in the judicial annals of Fiji that had considered analogical situations in which “dealing”, “alienation” and the “requirement consent” had surfaced. (Vide: Kikua Sakashita v Concave Investments Ltd (HC, 1999 per Fatiaki, J), Ratu Malakai Waqatabu v Native Land Trust Board & Another (High Court, 1995 per Byrne, J) Rezmat Ali v Akbar Ali (Court of Appeal, 23 July 1986).
[22] I could not see in any of those decisions where a trust pleaded by a non-lessee, sublessee etc. has received the attention of Court to be regarded as “a dealing” that required “consent by the Board”.
[23] Consequently, regarding the matter as one of first instance, I have no hesitation in granting leave to appeal the impugned Judgment of the High Court.
In re: The Appellant’s application for a stay
[24] On a mere perusal of the Appellant’s summons invoking the jurisdiction of this Court, I could not come to terms with what was the nature of the stay the Appellant was asking for and I say this for the following reasons:-
(a) The learned High Court Judge had in paragraph 23 of his Judgment had ordered the action to proceed to trial.
(b) That was in spite of the fact that, His Lordship in paragraph 22 of his Judgment had held against the Appellant on his cause.
(c) The Appellant in his own submission filed in March, 2018 had submitted that a date be set for trial. (Paragraph 62 of the said written submissions).
(d) Mr. Sen (on behalf of the Respondent) in his submissions stated that, the High Court proceedings are on foot and left it at that.
[25] Given the aforesaid factors, I could not find any basis to stay the proceedings of the High Court (going to trial) on the authoritative precedents thereon for which reasons I shall not waste paper and time thereon.
[26] However, Mr. Kumar for the Appellant on his feet submitted that the Respondent be restrained from disposing of the property pending a determination of this application for leave to appeal.
[27] I must say at this point that, a submission made on feet by counsel cannot be taken into consideration if the same is not found to have been pleaded specifically for it is an inveterate principle that relief which has not been pleaded cannot be entertained by a Court.
[28] Apart from that, should the Respondent seek to dispose of the property in question in the meantime then, that would certainly come within “a dealing” requiring “consent by the Board” and it would then be up to “the Board” to give consent or not.
[29] Accordingly, on the basis of the aforesaid considerations, I refuse to grant “a stay” of any sort or in any terms.
[30] In consequence, I proceed to make my orders as follows:-
Orders of the Court
Almeida Guneratne
Justice of Appeal
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