IN THE HIGH COURT OF FIJI
(AT LABASA)

CIVIL APPEAL NO. 12 OF 1994
(LABASA MAGISTRATES COURT CIVIL ACTION 72/89)

Between:

SURJI
(f/n Ram Autar)
Appellant

and

NATIVE LAND TRUST BOARD
Respondent

M. Sadiq for the Appellant
N. Nawaikula for the Respondent

JUDGMENT

On 1 July 1966 the Appellant's husband, Sukh Deo, now deceased, entered into a lease with the Respondent namely Native Lease No. 13150. The duration of the lease was 18 years and accordingly it was to expire, if not renewed, on 1 July 1984.

On 24 January 1984 Sukh Deo applied for the lease's renewal. The procedure applicable to the renewal of this lease was that procedure set out in Regulations 10, 11, 12 and 6-9 of the Native Land (Lease and Licences) Regulations (Cap 115 - 1967 Edn wrongly described in the lease as Cap 86). Under Regulation 12 an applicant has the right to continue to occupy the land in question until a decision on the application has been made by the Native Land Trust Board (the Board). Sukh Deo and his family continued to reside on the land.

On 17 February 1987, over 3 years after Sukh Deo had lodged his application, the Turaga ni Mataqali and 8 other members of the Mataqali Vunicaukuro wrote to the Board objecting to the lease's renewal. They stated that the Mataqali was short of land and that they wanted Sukh Deo's land back for themselves.

On 14 July 1987 the Board finally replied to Sukh Deo's 1984 application. By this time Sukh Deo had died and his widow's Solicitors were advised that the lease would not be renewed. The Appellant was given 6 months to vacate the land.

On 2 February 1989 the Board commenced proceedings in the Labasa Magistrates Court. The Particulars of Claim (page 9 of the record) which did not refer to the history of the Appellant's occupation of the land merely sought possession on the ground that the Appellant's occupation was without "Colour of Right".

A Defence and Counter Claim were filed on 18 March (pages 13 & 14 of the record). The exact logic of the Defence is a little hard to understand but appears to depend on the Appellant's wish to have the expired lease renewed. The Counterclaim is in my view of greater importance to this Appeal centring as it does on a "large concrete dwelling house" which Sukh Deo had erected on the land.

In his written submission filed, in the Magistrates Court Mr. Sadiq did not press the Defence but instead argued that Sukh Deo, having constructed this house on the land which his widow (the Appellant) was now being asked to vacate, the Appellant should receive adequate compensation from the Board for the house and other fixed improvements to the land the value of which he together assessed at $40,000.

The Resident Magistrate rejected Mr. Sadiq's submission. He referred to the Native Land Trust (Leases & Licences) Regulations (LN 98/1984) which had revoked the earlier Regulations when introduced during 1984. How far the latter Regulations applied to Sukh Deo's lease I am not absolutely sure (the point was not raised by Mr. Sadiq and apart from filing a written submission neither Mr. Nawaikula nor any other representative of the Board took the trouble to take any active part in the Appeal) but such differences as there are between the two sets of Regulations do not, as I see it, materially affect the matter which I have to decide.

Under both Regulations and under the lease itself Sukh Deo as lessee was obliged to construct a dwelling house on the demised land (see Condition 2 of the lease and Regulation 26(a) of the 1967 and 1984 Regulations). It was however a further requirement both of the lease and of the Regulations that the dwelling house so erected should be removable (see Condition 16 of the lease and Regulation 34(b) of the 1967 and 1984 Regulations). In this case the dwelling house being "large concrete" it was obviously not in any reasonably practical sense removable except as virtually worthless rubble after having being pulled down.

Mr. Sadiq argued that under condition 16(v) of the lease the Board could elect to purchase the dwelling house rather than seek its removal. I agree. What I cannot however agree with is the proposition that the Board can be compelled to purchase a dwelling house which as a result of the decision of the lessee freely taken is as a matter of fact not removable. There is nothing in the Act, in the Regulations or in the lease to this effect. Having arrived at this view of the meaning and effect of condition 16(v) of the lease and of Regulation 34(b)(v) of the 1967 and 1984 Regulations I do not think that the arbitration procedure contained in Regulations 13 and 19 of the 1967 and 1984 Regulations respectively have any application.

While one is bound to have considerable sympathy with the Appellant who now finds herself homeless and landless I can find no basis either in law or in equity for her to receive any compensation. On the facts I can find no scope for the application of the doctrine of unjust enrichment. If the dwelling house when constructed had complied with the requirements of the lease and Regulations and had been removable then at least the loss of the house would have been avoided. It may also be noted that the Board had offered the Appellant alternative land to which this removable house could have been moved. In my view the Resident Magistrate reached the right conclusion on the arguments presented before him.

There is a final matter, raised for the first time on Appeal: it is the question of the Resident Magistrate's jurisdiction.

Mr. Sadiq suggested (ground 1 of the Petition of Appeal) that the Resident Magistrate erred in entertaining this Action at all in view of the fact of the value of the Counterclaim ($40,000) exceeded his jurisdiction. This raises the interesting question of how a Magistrates Court should proceed when a claim within its jurisdiction is met with a Set-off or Counterclaim outside its jurisdiction.

So far as I can determine the Magistrates Court Act (Cap 14 as amended by Decree 35/88) does not directly answer the question but one general principle of practice becomes immediately apparent and can first be dealt with. It is this: alleged want of jurisdiction should always be raised at the commencement of the proceedings and while a total want of jurisdiction cannot be cured by consent of the parties (Jones v Owen (1849) 18 LJQB 8) a party who so conducts himself as to waive his rights cannot later rely on want of jurisdiction on appeal (see Windsor v Dunford (1848) 12 QB 603 and Pringle v Hales [1925] 1 KB 573). In the present case want of jurisdiction was not raised in the Magistrates Court at all and I have some doubt as to whether it could properly be raised on appeal.

In the absence of a particular procedural provision in the Magistrates Court Act or the Rules thereto Magistrates Courts are to be guided by the law and practice for the time being observed in England in the Country Courts and Courts of summary Jurisdiction (Cap 14- Section 46). Sections 32 and 33(1)(a)(ii) of Cap 14 and Sections 42(1)(c) and 43 of the English County Courts Act 1984 are relevant. In my view a Defendant alleging that his Set-off or Counterclaim involves matters beyond the jurisdiction of the Magistrates Court must raise this objection as a preliminary matter with a view either to transfer under Section 33(i)(a)(ii) or to possible enhancement of the Resident Magistrates jurisdiction under Section 19 of the same Act.

While it is tempting to suggest that section 46 could be used as a vehicle to import section 43 of the English Act into Cap 14 I am satisfied on reflection that it cannot. Even however if it is accepted that the Counterclaim exceeded the Resident Magistrate's jurisdiction it was not a Defence to the claim for possession but was a free-standing Counterclaim and therefore there was nothing to prevent the Resident Magistrate making the order for possession which the Board sought.

For the reasons already set out I am satisfied that in fact the Counterclaim was misconceived in law and that the Resident Magistrate, albeit probably acting beyond his jurisdiction was correct in the conclusion he reached. In exercise of the powers conferred on me by Order VI Rules 18 and 19 of the Magistrates Courts Rules I reaffirm the Resident Magistrate's Judgment and dismiss this Appeal.

M. D. Scott
Judge

19 June 1997
HBA0012.94B