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High Court of Fiji |
IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION
ACTION NO. 251 OF 1991
BETWEEN:
DIRECTOR OF LANDS
Plaintiff
AND
BW HOLDINGS LIMITED
Defendant
Mr. S. Sa'eda: For the Plaintiff
Mr. S. Parshotam: For the Defendant
Date of Hearing: 18th July 1991
Date of Judgment: 23rd July 1991
JUDGMENT
The Plaintiff is the lessor of a piece of Crown Land known as Veiquwawa Tiri land comprising 1.62 hectares at Suva. On the 7th of February 1985 the Defendant wrote to the then Director of Lands applying for a lease of this land and on the 11th of July 1986 the Defendant was advised by letter from the Plaintiff that an approval to issue a development lease for two years had been given to it.
The letter stated that the lease was to be subject to various conditions, only three of which are relevant for present purposes. They were:
(i) That the period of the lease was to be two years from 1st of August 1986.
(ii) That the purpose for which the land was to be used was for industrial purposes.
(iii) That no work was to commence on the site without the prior approval of the Director of Lands and the Suva City Council and then only with the approval of development plans.
On the 18th of July 1986 the Defendant accepted the conditions for the issue of the development lease and in due course a lease was signed by the present parties incorporating various terms including the three above. In the lease the purpose given to the land was said to be "foreshore development".
On the 29th of September 1986 the Plaintiff wrote to the Defendant requesting it to stop further development on the land until such time as the development plans had been approved by the Plaintiff and the Suva City Council. The Defendant ignored this request. Thereafter until the 27th of May 1991 various letters were exchanged between the Plaintiff and the Defendant or its Accountants and Civil Engineers. The Defendant continued to develop the land and at the present time has constructed four buildings on it with a view to re-sale at a profit. The present Originating Summons for summary possession of the land, which first came before me on the 7th of June 1991, was issued on the 24th day of April 1991. It seeks summary possession of the land under Section 169(c) of the Land Transfer Act Cap. 131 which reads so far as relevant:
"The following persons may summon any person in possession of land to appear before a judge in chambers to show cause why the person summoned should not give up possession to the applicant:-
(a) ................
(b) ................
(c) a lessor against a lessee or tenant where a legal notice to quit has been given or the term of the lease has expired."
The Plaintiff's case is simple. It says that the Defendant's term has expired and therefore it should be ordered to vacate the land. It also says that as a matter of equity also the Defendant should vacate because it has consistently ignored warnings by the Plaintiff not to develop the land without the permission of the Plaintiff and the Suva City Council in accordance with the lease. Condition 3 of the special conditions of the lease reads thus:
"The development plans are to be submitted to the Lessor and Suva City Council for prior approval before the commencement of any work."
On the 7th of June 1991 when the matter first came before me the Defendant applied for an adjournment of the Summons to enable it to state its position to the Court. I was also told that discussions were taking place between the parties in an attempt to achieve settlement, and I was pressed by Mr. Sa'eda who appeared for the Plaintiff both then and now not to grant any adjournment as the Defendant had already had sufficient time in which to state its case.
After hearing argument by counsel I ruled that because of the delay of the Plaintiff in pursuing the matter I considered it was equitable to give the Defendant until 13th of June 1991 to file an affidavit showing cause. On the 13th of June an affidavit was filed on behalf of the Defendant and the matter was then fixed for hearing before me on the 18th of July 1991.
Exhibited to the affidavit sworn by Bimla Wati Narayan a Director of the Defendant and filed on behalf of the Defendant were copies of various letters which had passed between the parties and/or their agents since the 4th of November 1986. It is apparent from these letters that the attitude of the Plaintiff to the Defendant has waxed and waned over the years but one thing is clear and indeed is not denied by the Defendant, namely that despite warnings by the Plaintiff not to develop the land with the prior approval of the Plaintiff and the Suva City Council, the Defendant ignored these warnings and developed the land.
To give some idea of the various changes of attitude by the Plaintiff I will now refer to some of this correspondence.
The first relevant letter is that of the 29th of September 1986 from the Plaintiff to the Defendant which I have already mentioned.
On the 11th of March 1987 the firm of Wood and Jepsen Consultant Civil Engineers, Surveyors and Town Planners wrote to the Plaintiff requesting it to approve a proposal by the Defendant for sub-division of the land presently in issue. On the 7th of April 1987 the Director of Lands wrote to the Defendant advising that he had no objection in principle and on the 13th of October 1987 the Director of Lands appears to have formally signed the Approval Notice of Lease which was then also formally signed by the Defendant.
Then on the 8th of December 1988 the Plaintiff wrote to Messrs Wood and Jepsen advising that because of the Government strategy in promoting and establishing Tax Free Zones the Government intended to takeover the land occupied by the Defendant and complete the sub-division. This letter also stated that no compensation would be paid to the Defendant whose development lease had expired but as a form of compensation, the Defendant would be offered a lease on land where the new factory/workshop building had been built without the approval of the Department. The letter also advised Messrs Wood and Jepsen that the Defendant should carry out no further sub-division on the site.
Then on the 29th of December 1988 the Plaintiff wrote again to the Defendant requesting it to provide him no later than 20th of January 1989 the following:
"(a) 4 copies of the SCC approved subdivisional scheme plan.
(b) 1 copy of the SCC approved engineering plan (covering road, sewerage, water, drainage, etc.).
(c) Time scale to complete the whole development to SCC satisfaction.
(d) Estimated development cost to completion."
This letter drew a response from Messrs Wood and Jepsen advising that the Suva City Council had deferred any approval to a scheme plan and the engineering plan because of the Plaintiff's letter of the 8th December 1988. Messrs Wood and Jepsen also stated that the Defendant intended to proceed with the development with all haste and expected to complete the development works by July 1989. It was estimated that the full development costs would be $598,000.00.
On the 17th of February 1989 the Plaintiff appeared to have undergone a further change of mind, then reverting to its earlier decision as evinced by its letter to the Defendant of the 29th of September 1986. The letter of the 17th of February 1989 was quite blunt. It stated that unless the Defendant complied with the Plaintiff's terms the Plaintiff would have to consider evicting the Defendant from the land. It also pointed out that as at 17th of February 1989 the Defendant had no lease and therefore should not be doing any further work on the land but despite this the Defendant still continued to do so. Then there was a gap in the correspondence until the 19th of August 1990 when Messrs Vishnu Prasad & Company, Chartered Accountants wrote to the Plaintiff in terms which have not been disclosed to the Court.
On the 3rd of September 1990, however the Plaintiff replied to this letter informing the Defendant:
(1) That it had commenced development without prior approval of the Plaintiff and the Suva City Council.
(2) Extended their development outside the approved area under the Approval Notice to Leave dated the 13th of October 1987.
(3) Ignored various written requests by the Plaintiff to submit a development proposal covering only the approved area.
(4) Defied Suva City Council and Director of Lands orders to stop work on buildings being illegally constructed.
(5) Illegally sub-let these buildings.
(6) Illegally constructed other buildings on adjacent State land already under lease to the Housing Authority.
The letter concluded by describing the Defendant's actions as high handed and advised that the Defendant's flouting of the law no longer would be tolerated and the matter was referred to the Solicitor-General.
In an obvious attempt to placate the Plaintiff Messrs Vishnu Prasad & Company chose to ignore the Plaintiff but wrote instead on the 12th of September 1990 to the Minister for Lands. This letter listed substantial developments carried out by the Defendant but then confessed that the Defendant had breached its lease and had encroached on Crown land outside the area originally leased to it. They appealed for the Minister's indulgence and a re-consideration by the Lands Department of its attitude. The letter included this short paragraph (g):
"In making this appeal, B W Holdings acknowledges its defaults in the carrying out of this development and the breaches of the terms of its lease conditions."
The penultimate letter in what counsel for the Plaintiff properly described "as an avalanche of letters" came from the Minister of Lands on the 13th of December 1990. This letter stated that the Minister was glad that the Defendant had realised the seriousness of its actions but nevertheless the Minister viewed the Defendant's breach of conduct with great concern in that it could create a very dangerous precedent. The letter concluded by advising that the Minister was considering several options and he expected to inform the Defendant shortly of his decision. This information was conveyed by the Plaintiff to the Defendant's Accountants in a letter of the 27th of May 1991 in which the Plaintiff stated that by continuing to construct buildings on the land the Defendant's apology could not be accepted as genuine but rather emphasised its blatant disregard for the law.
Under Section 172 of the Land Transfer Act a person summoned to vacate land may show cause why he refuses to do so, and if he proves to the satisfaction of a Judge a right to the possession of the land, the judge shall dismiss the Summons with costs or he may make any order and impose any terms he may think fit. This is subject to a proviso which I do not consider relevant here.
I accept as clear law that a lessor may bring an action for eviction if a term of the lease under which a tenant holds possession has expired. This is an obvious effect of Section 169(c). It was also stated by the Court of Appeal in C.A. No. 16 of 1983, Ram Narayan v Moti Ram affirming what the Court had earlier said in 1974 in Vallabh Das Premji v. Vinod Lal and Others C.A. No. 70 of 1970 (unreported) that if the proceedings involve consideration of complicated facts or serious issues of law, the Court will not decide them on summary proceedings of this nature, but will dismiss the Summons without prejudice to the Plaintiff's right to institute proceedings by Writ of Summons. Counsel for the Plaintiff says that likewise, there are no complicated issues in this case - a term of the lease was breached and the lease had expired.
Mr. Parshotam for the Defendant endeavoured valiantly to minimise the effect of the Defendant's conduct in breaching the lease and in continuing to develop the land after the lease had expired. He pointed out that rent had been paid by the Defendant and accepted by the Plaintiff until the 31st of December 1990 and that therefore, by Section 89(2)(a) of the Property Law Act Cap. 130 a fresh tenancy had been created and the Plaintiff could therefore not proceed summarily but rather must now issue a Notice to Quit. Against this Mr. Sa'eda for the Plaintiff relies on Section 36 of the Crown Lands Act Cap. 132 which says that the acceptance by the Crown any rent shall not be held to operate as a waiver by the Crown of any forfeiture accruing by reason of the breach of any condition in any lease under the Act.
In my opinion this argument must succeed. The land in question is Crown land and therefore the Director of Lands cannot be said to have waived his rights to evict the Defendant by the receipt of rent. Furthermore the very frank admissions made on behalf of the Defendant in the letter to the Minister of the 12th of September 1990 suffice in my judgment to show that the Defendant has not shown it has any right to remain in possession of the land. I therefore hold that the Defendant must be evicted from the land.
That said, however, it seems to me only fair in view of the rather tolerant attitude shown to the Defendant by the Plaintiff over the years as shown by the correspondence that the Defendant is entitled to be given time in which to vacate the land. There is no doubt that the Defendant by its actions took a commercial risk fully realising that in developing the land it had not complied with the conditions of the lease. However I think there is some merit in the claim its Accountants made to the Minister on the 12th of September 1990 that as a result of the Defendant's actions there has been substantial improvement and development on the land that was previously idle, unutilised. Substantial employment was created during the development period and substantial capital has been injected into the developed area. The Defendant further has shown willingness to risk capital at a time when other investors were being more cautious and it is now in the position of having four buildings on the land which must become the property of the State. In all these circumstances I consider it fair to give the Defendant a stay of three months before the order I make for its eviction from the land is to take effect. Accordingly I make the following orders:
John E. Byrne
J U D G E
HBC0251J.91S
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