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

CIVIL ACTION NO. HBC002 OF 1997L

BETWEEN:

SOUTH SEA CRUISES LTD
PLAINTIFF

AND:

VUNIVADRA ISLAND LTD
DEFENDANT

Mr Maharaj for the Plaintiff/Respondent
Mr Daubney/ Mr Johnston for the Defendant/Applicant

Date of Hearing: 12th June 1997
Date of Ruling: 17th October 1997

RULING

This application was heard before me on the 12th June 1997. Mr M. DAUBNEY as Counsel (with Mr M. JOHNSTON) appeared for the Defendant/Applicant and Mr MAHARAJ appeared for the Plaintiff/Respondent.

The application for decision is one by the Defendant filed on the 18th February 1997 wherein the Defendant (Applicant) seeks summary judgment against the Plaintiff (Respondent) on its counter claim. Further the application seeks to have the Respondent removed from VUNIVADRA ISLAND, which the Respondent currently occupies pursuant to a lease agreement. The validity of that lease agreement is very much in question in this application.

The application is brought under O.14 r.2 of the High Court Rules. Quite apart from any deficiencies or technical matters in the application, it is, in short, an application for summary judgment.

In respect of the application for vacant possession, O.29 refers. I propose to decide the application in respect of O.14 first as this of course will impact on the O.29 application.

Although the point at the centre of argument in this application may well be determinative of the whole action, this is not necessarily a trial on a preliminary issue. It is an action for summary judgment, although the Court's ruling may give cause to invoke O.33 r.7. Both Counsel when presenting argument, were of like mind as to the likely impact of a decision on this crucial point may have on the whole issue.

FACTS

GINGKO LIMITED is the lessee of VUNIVADRA ISLAND, an island off Nadi and comprising the land in Native Lease 4/10/3471. GINKO LIMITED underwent a change of shareholders and directors and changed its name to VUNIVADRA ISLAND LIMITED (the Applicant).

The Respondent (SOUTH SEAS CRUISES LIMITED) is a Tourist/Marine Operator based mainly in the Western area of Viti Levu.

On the 14th December 1993, the Application (it was then GINGKO LIMITED) and the Respondent entered into a lease for the term of 30 years whereby the Respondent was given an exclusive lease of VUNIVADRA ISLAND. The Respondent went into possession of the Island on or about the 15th December 1993. It has, it says, invested a substantial amount of money in a tourist development on the Island called, I am led to understand, "Aqualand".

There is no suggestion in the material before me that the Respondent is in breach of its lease otherwise than on the point argued.

On the 31st December 1996, the Applicant through its solicitors, indicated its intention to terminate the lease. The reason it is taking that position is clearly set out in paragraph 2 of its Defence. The Applicant claims the lease between it GINGKO LIMITED (as it then was) and the Respondent did not have the prior consent of the Native Land Trust Board pursuant to S.12 of the Native Land Trust Act (Cap 134) and is thus void and inoperative. It is, it is argued, an illegal agreement which is null and void and unenforceable.

The Applicant's view, therefore, is that the Respondent is a trespasser and ought to be evicted. It claims, by way of counter claim to the Respondent's Writ of Summons filed the 7th January 1997, to be entitled to be compensated for mesne profits arising from the Respondent's alleged illegal occupation of VUNIVADRA ISLAND.

The Respondent claims to have the required consent.

A QUESTION OF CONSENT:

There are some matters not in dispute.

The lease runs from the 3rd December 1993. The agreement was signed by the parties on the 14th December 1993.

Clause 10 renders the lease subject to the consent of the Native Land Trust Board. Although it is not so set out, this is undeniably a reference to consent pursuant to S.12 of the Native Land Trust Act (the Act).

Section 12(1) of the Act reads:

"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."

Neither Counsel disputed what is now settled law in Fiji:- that to proceed to put into effect the terms of an agreement dealing in land (as in this case, a lease) without the prior consent of the Board, renders the agreement null and void and hence unenforceable. (See CHALMERS -v- PARDOE [1963] 3 ALL ER 552).

Such an agreement can be entered into prior to obtaining the consent, but other than making application for consent, it cannot be further acted on until the consent is forthcoming. The agreement remains inchoate until the consent is obtained (See D.B. WAITE -v- WALLATH [1972] 18 FLR 141). Then and only then, is the agreement valid.

In the matter now before the Court, the agreement (lease) runs from 3rd December 1993. Possession was not given, by admission, until on or about the 15th December 1993. Between the 3rd December 1993 and 15th December 1993, the agreement (although signed on the 14th December) remained inchoate. That much is not disputed.

The Respondent argues that it has the required consent. It refers to the undisputed fact act that on the 15th December 1993 the Respondent's Representative paid to the Native Land Trust Board the sum of $30.00 being the consent fee prescribed under Regulation 7 of the subsidiary legislation to the Act.

Further, on page 9 of the lease, the word "approved" appears and directly underneath is the signature of one TIMOCI WAQAISAVOU, then an Estate Manager for the Native Land Trust Board. The ascribed date is the 15th December 1993.

There is no suggestion, at this stage, that Mr WAQAISAVOU was not a properly appointed officer under Section 30 of the Act and thus could properly carry out the provisions of the Act. Subsequent evidence may refute or confirm this.

On the 15th December 1993 there was no written application made as such. This came later. By written application dated the 12th May 1995, the then company Secretary of the Applicant (it was still GINGKO LIMITED) formally and, as I have said, in writing applied for that consent.

Written notification of the consent was then given, dated the 1st June 1995, under the hand of KITIONE TUIBUA Estate Officer with the Native Land Trust Board.

The Respondent relies on the explanation of offered by the Native Land Trust Board to the Applicant's solicitors of 13th February 1997 (as annexed to MR MYER's Affidavit of the 6th June 1997) which reads:

"13th February 1997

Young and Associates
Barristers and Solicitors
PO Box 60
LAUTOKA

Attention: Mr Chen Young

Dear Sir,

Re: Native Land known as Vunivadra Sub-lease
-----------------------------------------------------------------------------------------------------------------------------
I refer to your several enquiries and to our recent discussion (Mr. Young/Netava) regarding the sublease dealings on the above Native Lease.

Please be informed that a sub-lease agreement was drawn up on 14th December, 1993 and the Board was aware and approved of the dealings on 15th December, 1993. For some reasons the paper work was not completed until 1st June, 1995. The consent forms signed and approved by us on June, 1995 was for the same agreement dated 14th December, 1993.

It is hoped that we have now made ourselves clear on this long outstanding situation.

Yours faithfully,

N. BAKANICEVA (sgd.)
FOR DIVISIONAL ESTATE MANAGER (WESTERN)"

The Respondents thus say that the consent was given on the 15th December 1993 before possession. What followed lowed was attending only to the formal paperwork. It argues that written confirmation of the consent was given on the 15th December 1995. The Respondents argue that this was only an administrative procedure but that the consent given on the 15th December is in fact a legal and proper consent.

The Applicant says that a notation "approved" is not the same as consent as required by Section. Thus they argued the notation of Mr WAQAISAVOU cannot be taken as consent for the purposes of Section 12.

Even if it were, it is argued, the Act and the Subsidiary Regulations prescribe a procedure to be adopted in obtaining a consent. If not followed, then, it is argued, any consent so obtained is invalid. This argument is as follows:

Regulation 8 of the Subsidiary Legislation requires an application for consent "shall be in such form ....................... as the Board shall determine."

I am told that the appropriate form is the one forwarded on or about the 12th May 1995. There was no such form filled in on the 15th December 1993. At best, it is argued, there is a presumption that the application was "verbal."

Therefore, the consent "or approval" of that day (15th December 1993) is not a proper consent as no application in proper form was made. It is only the consent of the 1st June 1995 which is therefore valid. It follows, it is argued, that as the Respondent was in possession between the 15th December 1993 to the 1st June 1995 the agreement was, for that period, no longer inchoate but operative and thereby the agreement was rendered null and void as no proper consent had been given earlier (See CHALMERS -v- PARDOE supra).

As the to the first limb of this argument, the words "consent" and "approved" must be given their natural meaning.

Consent is defined in the Shorter Oxford English Dictionary as, inter alia, "agreement as to a cause of action", "voluntary to accede to or acquiesce in a proposal, request etc.", and to "agree, accord."

The same publication defines approve as, inter alia, "to assent to as good", "to attest with some authority" and "to confirm authoritatively." Approval is defined as "sanctional." (Not surprisingly, assent includes in its definition as "to agree to", "to agree upon" and as an "Official Judicial or formal sanction").

In my judgment, the words "consent" and "approve" (or "approved" as used here) are so closely matched in meaning that, in the context of Section 12 of the Act, they are for all intents and purposes synonymous.

Thus, in my judgment, prima facie (my emphasis) consent was obtained on 15th December 1993 and confirmed in writing on the 1st June 1995. (I pause to note that section 12 does not, of itself, require written consent).

The real question is whether or not the consent of 15th December 1993 was a properly applied for and thus a properly given consent. However, having taken the view that a consent was given prima facie on the 15th December 1993, the situation as regards an application for summary judgment is somewhat complicated, particularly when one is asked to adjudicate on the administrative validity of such consent. The important consideration to be borne steadily in mind in Order 14 applications is that the Respondent is not to be shut out of an action unless the facts are indisputable and/or any point of law raised is unarguable (See generally 1995 White Book Volume 1 para, 14/2 and 14/3 at pp 157 and 158).

It is unarguable that, in the given circumstances, had the finding been that there was no prima facie consent or at all, that the application would succeed. This however is not the case, at least in my view.

Regulation 8 (1) of the Subsidiary Legislation reads:-

"An application for the consent of the Board under section 12 of the Act to deal with any native land shall be in such a form and shall be accompanied by such information and evidence as the Board shall determine."

I was informed from the Bar Table that the application form of 12th May 1995 was "the form" required by this regulation. But I was not informed as to whether this was just a matter of administrative convenience or whether, by virtue of having being gazetted, this form could be said to have the force of a mandatory statutory requirement.

It strikes me, for example, that Mr WAQAISAVOU, for example, may, as an authorised officer under S.30 (if that is what he was) have had the power, if the form does not have enforce of the mandatory requirement, to vary the requirements of Section 8(1) as the prevailing circumstances dictated. As I read the Board's letter of the 13th February 1997, there is room to imply that the "consent" was given subject to a written application being put before the Board by way of confirmation at a later date.

If this last mentioned possibility is the case (and evidence is led that the Applicant agreed to that procedure), could not the question of estoppel arise in respect of the Applicant's present contention that the consent is not a valid consent? This is only one point which occurs to me. It, and the matter raised above, may subsequently prove invalid. That these possible arguments exist is sufficient to deny summary relief as sought.

These are matters which are not canvassed in the Affidavits and nor in the submissions. Properly such arguments would most likely result from evidence of the surrounding circumstances in which the consent of the 15th December 1993 was obtained.

Taking a strict view of the approach to be taken in O.14 application, I am not convinced that the Respondent is unable to raise a triable issue on fact act or law as to matters raised in the Applicant's defence and counter claim. As such is the case, I decline the application.

Furthermore, whilst I have found that "approved" is prima facie a consent for the purposes of Section 12, I consider a closer examination of all the evidence (of which the material presently before me quite obviously will form only part) is required before a final judgment on the "validity" of that consent can be made. Accordingly I decline to make any ruling in the terms of the O.33 ru.7.

I might point out that I am making no definitive ruling on the validity of the consent\approval. That is for a later time. What I do consider is that the material before me now is such that arguments have been raised which require more detailed examination by the Court (and the taking of further evidence) and an Order 14 application is not suitable for the adjudication of that point.

The costs are reserved.

The injunction of the 24th January 1997, extended as it had been by subsequent orders, is extended until further order.

JOHN D. LYONS
JUDGE
HBC002D.97L