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Fa v Lateef [1995] FJHC 140; Hbc0596d.93s (4 September 1995)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. 596 OF 1993

BETWEEN:

TEVITA FA
a Barrister & Solicitor
of 41 Gladstone Road, Suva and who
practices under the firm TEVITA FA & ASSOCIATES
Plaintiff

AND

ABDUL LATEEF (f/n Kasum) HONGWING WILLIAM YEE,
WILLIAM JAMES CLARK,
RATU SIR PENAIA K. GANILAU, HARRY KISS
all of Suva
First-named Defendants

AND

TRADEWINDS MARINE LIMITED and
OCEANIC DEVELOPERS (FIJI) LIMITED
of Suva, Fiji
Second-named Defendants

H.M. Patel for the Plaintiff
H. Lateef for the First-named Defendants

Date of Hearing: 29th August 1995
Date of Interlocutory
Judgment: 4th September 1995

INTERLOCUTORY JUDGMENT

I have before me a Summons dated 18th April 1995 issued by the First-named Defendants for an order that this action be struck out since the Plaintiff could not rely on the Leasing Agreement between himself and the Defendants because the consent of the Director of Lands was never obtained for the Agreement.

The Summons follows an order which I made on the 15th of March 1995 that as the consent of the Director of Lands had not been obtained for the Agreement which was relied upon by the Defendants his cause of action is null and void and not binding on all the Defendants.

Mr. Patel who appeared for the Plaintiff did not dispute that the failure to obtain the consent of the Director of Lands to the Leasing Agreement was fatal to the Plaintiff's claim under the Agreement. However he submitted that rather than strike the action out it would be fairer to allow the Plaintiff to amend his Statement of Claim to claim damages against the First-named Defendants.

The history of this case is already fairly well documented. It appears partly in the judgment of Pathik J. in Civil Action No. 389 of 1993 Tradewinds Marine Limited and Oceanic Developers (Fiji) Limited v. Tevita Fa of 20th October 1994 and the decision by Thompson J.A. of the 18th of November 1994 on an application by the Plaintiff for an extension of time in which to appeal against the order for possession made by Pathik J. and then for a stay of enforcement of that order.

Briefly to state the history, the Plaintiff carried on his practice as a Barrister and Solicitor in a building situated at 41 Gladstone Road, Suva by a sub-lease from the First-named Defendants to him which appears to be dated 13th of March 1989. The head-lease was a protected Crown Lease by five persons as Trustees for the Alliance, a political party.

According to the Plaintiff, the Trustees agreed to obtain the consent of the Director of Lands required by Section 13(1) of the Crown Lands Act Cap. 132 but failed to do so. The effect of that is that regardless of who was supposed to obtain the consent of the Director, if it was not obtained the sub-lease is a nullity. This was the reason why on the 15th of March I dismissed the Plaintiff's action against the Second-named Defendants who in any event, as Thompson J.A. said could not be fixed with any obligation towards the Plaintiff arising out of the First-named Defendants' failure to obtain the Director's consent.

The First-named Defendants submitted that in his original Statement of Claim herein annexed to the Writ which he issued on the 5th of November 1993 the Plaintiff relied throughout on the Leasing Agreement. For example paragraphs 20 to 33 allege that the property which the Plaintiff leased was sold by the First-named Defendants for a consideration of $50,000.00 whereas under Clause 9 of the Agreement the Plaintiff was given an opportunity to purchase the property and the First-named Defendants failed to give him that opportunity.

The Plaintiff claims that the First-named Defendants never intended to comply with Clause 9.

On the 18th of February 1994 the Plaintiff amended his Statement of Claim to allege in paragraphs 35 and 36 that the First-named Defendants had committed fraud against him by depriving him of the opportunity to purchase the property in question. He alleges that the fraud is constituted by the fact that the property had been given a valuation of $350,000.00 although it was sold for $50,000.00.

Mr. Lateef submitted that since this Court has ruled that the Agreement is null and void the Plaintiff cannot rely on it and furthermore that the Plaintiff's allegations of fraud must also fail because by consent he abandoned his claim against the Second-named Defendants.

It appears that under Clause 2 of the Agreement the landlord was responsible for obtaining the necessary consent from the Director of Lands for the leasing including the sub-lease. Therefore, says Mr. Lateef, if anything the Plaintiff now has only a claim for damages against the First-named Defendants (although he does not concede this) and that it would be better for the Plaintiff to discontinue his present action and issue fresh proceedings against the First-named Defendants for damages if he so wishes.

This was touched on by Thompson J.A. on page 6 of his judgment who said that while the Plaintiff may have a claim against the First-named Defendants for damages he could not show either that the Crown Lease did not pass to the Second-named Defendants or that they had any obligation in law or equity to permit him to continue to occupy the premises. He therefore confirmed the order of Pathik J. In answer to these submissions Mr. Patel relies on Section 13 of the Crown Lands Act which states that where in any lease under the Act there is a clause stating that the lease is protected under the provisions of the Crown Lands Act the lessee must first obtain the consent of the Director of Lands before alienating the land in any way.

Mr. Patel then relies on Clause 9 of the lease and submitted that I should allow the Plaintiff to amend the Statement of Claim to claim damages against the First-named Defendants.

He has referred me to a number of cases in which it has been held that the power to strike out a Statement of Claim given by Order 18 Rule 18 of the Rules of the High Court must be used sparingly and is not appropriate to cases involving difficult and complicated questions of law. These are Attorney-General v. Shiu Prasad Halka (1972) 18 FLR 210 at p.214 per Gould V.P., a judgment of my own in Civil Action no. 130 of 1990 Air Pacific Employees' Association v. Air Pacific Senior Staff Association and Another, unreported judgment of 7th January 1991 and Samuela Matawalu v. Fiji Times Limited Civil Action 335 of 1989, unreported judgment of Jayaratne J. dated 26th October 1990. I would also mention Nagle v. Feilden [1966] 2 Q.B. 633 where Salmon L.J. said at p.651:

"It is well settled that a statement of claim should not be struck out and the plaintiff driven from the judgment seat unless the case is unarguable."

In reply Mr. Lateef said that if the option to purchase were separate from the Leasing Agreement the consent of the Director of Lands would not be required but here since the option is included in the Agreement it must also fall with the agreement. Mr. Lateef further submitted that the cause of action which the Plaintiff now apparently wishes to pursue is totally different from the cause of action he pleads in his current Statement of Claim.

I agree with this submission and although strictly speaking the Plaintiff could be given leave to amend his Statement of Claim in accordance with the cases I have mentioned, nevertheless in my view since it is clear the Plaintiff wishes now to pursue a claim for damages against the First-named Defendants the simpler course will be for him to issue a fresh Writ against the First-named Defendants making such a claim if he so desires. This will not mean that the Plaintiff is driven from the judgment seat for ever but merely that his route of approaching it will be different.

In either event the Plaintiff realises he would have to pay the First-named Defendants' costs of his application to amend the Statement of Claim just as he will have to pay those here of the First-named Defendants' Summons.

The material satisfies me that in this case it is proper to strike out the Plaintiff's Statement of Claim and I make an order in terms of the First-named Defendants' Summons of the 18th of April 1995. The Plaintiff must pay the First-named Defendants' costs of that Summons.

JOHN E. BYRNE
JUDGE

The following legislation and authorities were referred to in judgment:

Crown Lands Act Cap. 132.
Attorney-General v. Shiu Prasad Halka (1972) 18 FLR 210 at p.214.
Civil Action No. 130 of 1990, Air Pacific Employees' Association v. Air Pacific Senior Staff Association and Another, unreported judgment of Byrne J. of 7th January 1991.
Samuela Matawalu v. Fiji Times Limited Civil Action 335 of 1989, unreported judgment of Jayaratne J. of 26th October 1990.
Nagle v. Feilden (1966) 2 Q.B. 633 at 651.

The following additional case was cited in argument:

Court Bros. (Furnishers) Ltd. v. Sunbeam Transport Ltd. (1969) FLR 206.

HBC0596D.93S