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IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION
CIVIL APPEAL NO. 25 OF 1997
(Nausori Civil Action No. 60 of 1996)
BETWEEN:
DEO KUMARI
f/n Bhaghirati Maharaj
Appellant/
Original Defendant
AND:
BHAGAT RAM
f/n Ram Brij
Respondent/
Original Plaintiff
n>
Mr. I. Fa for the Appellant
Mr. V. P. Maharaj for the Respondent
JUDGMENT
This is an appeal from the following Order by consent made on 30 July 1997 at the Nausori Magistrate's Court by the Resident Magistrate
V.D. Nadukuitavuki Esquire:
(a) The Defendant to give immediate Vacant Possession to the Plaintiff of all that property situated at Dawasamu, Tailevu more particularly
described as C.T. 18783 Lot 3 on D.P. 3508 having an area of 12 acres 9 perches;
(b) The execution is to be stayed until 1st day of August, 1998 provided the Defendant pays all the arrears of rentals to date in the agreed sum of $700.00 (Seven hundred dollars) within 30 days from the date of this Order;
(c) Each party to bear his/her own costs.
Grounds of appeal
The Grounds of Appeal are as hereunder (including additional grounds allowed to be added):
1. THAT the learned trial magistrate failed to take into consideration the fact that the plaintiff by accepting rent from the defendant had
created a tenancy under the Agricultural and Landlord Tenant Act and any application for vacant possession shall be first dealt by
the Agricultural Tribunal and that this honourable court has no jurisdiction or powers to deal with the matters in these proceedings.
2. THAT the consent order infringes the provisions of the Agricultural Landlord and Tenant Act in that the parties hereby cannot contract out of the provisions of this Act.
3. THAT the Learned Trial Magistrate failed to take into account that there was a dispute between the Landlord and the estate of Deo Dutt
as to the increase in rent of the Agricultural Land lease and as such the Agricultural Tribunal is the only forum that has power
to handle the said dispute pursuant to sections 24 and 9(g) of the Agricultural Landlord and Tenant Act.
4. THAT since the Magistrates Court has no power to deal with declaration of tenancy and settlement of rental disputes regarding agricultural
land, the consent Order dated 18th July, 1997 is null and void from the beginning.
5. AT the time the alleged consent Order was made there was an application pending before the Agricultural Tribunal and which application
was withdrawn thereafter by her then Counsel for the Appellant without the instruction of the Appellant and which is contrary to
Law.
6. THAT the Learned trial Magistrate has no power to order vacant possession in relation to this property because the value of the Lease
is well over $15,000.00 (Fifteen thousand dollars) and as such the Learned Trial Magistrate had acted beyond his jurisdictional power
and as such the Vacant Possession Order issued is null and void from the beginning.
Background facts
In so far as it is relevant to this appeal I give below the background facts of this case.
The Plaintiff who is the registered proprietor of the land comprised in C.T.18783 Lot 3 on D.P. 3508 containing an area of 12 acres
9 perches (the "land"), claimed vacant possession of a portion of the land from the defendant who was his tenant at the
annual rental of $138 per annum payable six monthly in advance. The defendant fell into arrears of rent whereupon she was given three
months notice to remedy the breach but the defendant refused and neglected to do so and hence the tenancy was deemed to have been
determined. She refused to vacate the said land. So in March 1996 the Plaintiff issued a Writ of Summons in the Magistrate's Court
at Nausori, claiming, inter alia, an order for immediate vacant possession of the land.
Subsequently the said order by consent referred to hereabove was made on 30 July 1997 against which the defendant (the "appellant")
is now appealing.
Consideration of the grounds
I shall now deal with the issues in the light of the arguments put forward by both counsel. I must at the outset point out that this
record of the hearing will not have been so lengthy had Mr. I. Fa come fully prepared to argue this case particularly in regard to
certain preliminary matters which every counsel is required to attend to before the hearing and the reason given for this unpreparedness
is unsatisfactory.
As I see it, in a nutshell, there are two main issues which emanate from the grounds filed and I shall deal with them under those
heads, namely, firstly, the jurisdiction of Magistrate's Court to deal with the case and secondly, the validity of the said consent
order.
Jurisdiction of Magistrate's Court
It is not in dispute that the defendant had a statutory tenancy under the Agricultural Landlord and Tenant Act Cap. 270 ("ALTA") at the rental of $66.00 payable every six months. She was in breach of her rental payment and hence under
s.37 of ALTA which provides as follows she was given 3 months notice to remedy the breach but she refused and neglected to do so
and hence tenancy was deemed to have been determined:
"37. - (1) A landlord may terminate his contract of tenancy and may recover possession of an agricultural holding -
(b) .....
(c) .....
(c) by three months' written notice to quit -
(i) where the tenant is not cultivating or operating such holding according to the practice of good husbandry and the interests of
the landlord are materially prejudiced thereby; or
(ii) if any part of the rent in respect of the holding is in arrear for a period of three months or more or if any lawful term or
condition of the tenancy which is capable of being remedied is not performed or observed by the tenant:
Provided that, if the tenant pays the rent in arrear or, in the case of breach or non-observance of any lawful term or condition of
the tenancy, the tenant makes good such breach or non-observance within three months of the notice to quit, the notice to quit shall
deemed to be cancelled and of no force and effect."
It is in the circumstances above that the plaintiff instituted the present proceedings in the Magistrate's Court. She neither paid
the arrears of rent nor sought relief under ALTA.
The parties and their respective counsel in the presence of the learned Magistrate obtained the said consent Order. The plaintiff
allowed her twelve months to move out, that is until 1 August 1998. The record (p.31) in this regard reads as follows:
Mr. Maharaj:
1. We have decided that the defendant to stay on the said land for 12 months from today until 30.7.98.
2. After that date the defendant to vacate the plaintiff's property on or before 1.8.1998.
3. Arrears rental of $700 to be paid within 30 days from today.
Court:
Consent Order shall be the Order granted by this Court.
(Sgd) V.D. Nadakuitavuki
It is Mr. Fa's argument that although the appellant is not disputing that the Magistrate's Court has the 'power to order vacant possession in some agricultural land. We submit that the Magistrate has no power to issue vacant possession
when an agricultural lease that falls under ALTA there exists disputes as to the terms and duration of the lease ..... We submit
that the Magistrate's Court has no legislative power to order vacant possession regarding the particular facts of this case. LOTAN'S
case FCA 45/84 is distinguishable from this case, because in that case the tenant's lease has expired and at that moment he has no
right to possession'.
Before consenting to the Order the appellant could have gone to the Agricultural Tribunal but she and her counsel decided otherwise
and entered into a consent order.
There was no discussion about anything relating to the alleged contravention of the provisions of ALTA. Nothing was raised about any
illegality as is being done on Appeal now.
The Fiji Court of Appeal had to deal with applications for possession of land while application to Tribunal is pending and has laid
down principles to be borne in mind. (Soma Raju v Bhajan Lal Civ. App. 48/76 FCA, Shiva Rao v N.L.T.B. and N.L.D.C. Civ. App. 76/81 FCA, Chandra Wati v Gurdin Civ. App.
34/80 FCA Dharam Lingam Reddy v Pon Samy et al. Civ. App. 42/81 FCA, Azmat Ali v Mohammed Jalil Civ. App. 44/81 FCA, Lotan v Garrick
and Garrick Civ. App. 45/84 FCA).
I refer to the case of CHANDRA WATI v GURDIN (Civ. App. 34/80 FCA). There the respondent gave appellant notice to vacate whereupon appellant applied to the Tribunal for relief.
Settlement took place and the application was withdrawn then the application was again restored. A summons for possession under s169
of Land Transfer Act ("LTA") came before the Supreme Court (now High Court) in Chambers in Lautoka. There it was stated,
inter alia, that:
"Under s.172 L.T.A. it is clear "that the Judge is required to dismiss the summons if it is proved to his satisfaction that
the person or persons to whom it is directed has a right to possession of the land; the dismissal of a summons does not, however,
prejudice the right of the lessor to take other proceedings to which he may be otherwise entitled".
In the case before me the appellant had no right at the moment of the hearing to possession as it was terminated by notice under s37
of ALTA; and after the consent order was made the application which was before the Tribunal was withdrawn and hence there was nothing
pending before the Tribunal.
I agree with Mr. Maharaj that although notice was given under s.37 of ALTA, and that since the Magistrate's Court had jurisdiction
under s2 of the Magistrates' Courts (Civil Jurisdiction) Decree 1988 to hear claim for possession, which counsel admits, it was completely in order for the plaintiff to pursue his claim in the
Magistrate's Court which he did. To show that the Magistrate's Court has jurisdiction on the facts before me I refer to SADAL J's
judgment in RAGHUNANDAN f/n Ram Sewak and RAM PRATAP f/n Ram Tahal & Others (Civ. App. 7/95L at Lautoka 9.4.98). In this regard I also refer to the following passage from the judgment of SPEIGHT V.P. in the Fiji Court of Appeal case of LOTAN s/o Durga and I. DOUGLAS J.G. GARRICK 2. HELEN L. GARRICK (Civ. App. No. 45 OF 1984 at p.6) which is apt:
"Nevertheless, and contrary to the view which some counsel have expressed in other cases, the Tribunals do not have exclusive
jurisdiction in respect of agricultural land. Its powers are set out in Section 22.
The power to apply to the Court independently of ALTA is preserved in Section 169 (summarily) and in the first proviso to Section
172 (by writ). And under Section 3 the Land Transfer Act prevails over any other Act inconsistent therewith. Yet in Soma Raju v. Bhajan Lal F.C.A. Civil Appeal 48/76 this Court held that the indefeasibility provisions did not mean that registration under the Act extinguished
an ALTA tenancy: an example of special provisions prevailing over general.
An illustration of the exercise of the general jurisdiction of the Supreme Court is to be found in Shiva Rao v. Native Land Trust Board - a fully defended action which became the subject of appeal to this Court - F.C.A. Civil App. 76/81."
On the obtaining of possession, Lotan's case states at p.7-8 that the 'availability of the Agricultural Tribunal as a forum for obtaining
possession seems to be limited'. It goes on to state:
Its (tribunal's) functions are prescribed in Section 22, particularly in subsection (1). It may fix rent, determine compensation,
alter the size of holdings, grant relief against forfeiture and generally exercise wide supervisory powers. Despite the provisions
in subparagraph (j) to "decide any dispute.........relating to such land" the power to grant recovery of land, however,
is limited by subparagraph (i) to cases of failure to cultivate - the only such power. Hence the general applicability of the ordinary
action for possession - see Section 60 of ALTA and the provisions of the Land Transfer Act."
Section 60 of ALTA is a 'general saving' clause which provides:
60. Except as in this Act expressly provided, nothing contained in this Act shall affect prejudicially any power, right or remedy
of a landlord or tenant or other person, vested in or exercisable by him by virtue of the provisions of any Act or by, order or in
respect of any contract of tenancy or other contract."
However, in LOTAN it is further stated that the courts and tribunals are 'encouraged' to work in harmony. In the case before me there was a consent
order and whatever was pending before the Tribunal, details whereof has not been revealed, it was withdrawn by the defendant after
the Order was made. Hence there was no conflict of jurisdiction between the writ action in Court and whatever if any there was before
the Tribunal.
Consent order
The law on 'consent orders' is very clear. It is set out at length in the White Book 1979 Vol.2 at p606 et seq. Such orders are binding until set aside by a separate action brought for the purpose although it has been entered
by mistake (AINSWORTH v WILDING 1896 1 Ch.673, WILDING v SANDERSON 1897 2 Ch.534); an objection on them or their unlawfulness (because it was agreed to by previous counsel without authority) cannot
be raised as Mr. Fa is doing by way of this appeal. All his arguments in this regard are devoid of any merit whatsoever.
Mr. Fa argued very seriously that the appellant's former counsel had no authority to consent. On the subject of 'authority of counsel'
the law is quite clear and I refer in this regard to the White Book at p.608 where it is stated, inter alia, that "counsel has complete authority over the suit, the mode of conducting it, and all that is incident to it; ..... or to compromise
any matter in the action [The Alliance, etc Syndicate v MacIvor & Co (1891) 7 T.L.R. 599] unless he has received positive instructions to the contrary ....."
On the setting aside of a consent judgment I refer to a useful account of it in the judgment of PALMER J in STATE TRANSPORT LTD and THE HOUSING AUTHORITY (Civil Action No. 271 of 1988 at Suva - 18.1.89) which supports the need to bring a fresh action. This case also refers to the case
of MOHAMMED RASUL v HAZARA SINGH 8 F.L.R. 14 (1962). There the Plaintiff brought an action against the defendant virtually on the same grounds as a previous action which was
settled with the filing of terms of settlement in Court whereupon the suit was discontinued. It was held by the Court that the earlier
actions having been settled and discontinued the same issue could not be made the subject of a present action until the compromise
in the first action is set aside in an action brought for that specific purpose.
In view of the above authorities, it is my view that the procedure adopted by the defendant to appeal is obviously misconceived. This,
in short, was a principal ground of appeal and for the reasons given it fails.
In view of what I have stated hereabove I see no point in considering so many other incidental matters which have been raised in the
grounds.
Conclusion
To sum up the Magistrate's Court had jurisdiction to entertain the application for vacant possession after a proper notice under s37
of ALTA was served on the appellant on the authority of the case of LOTAN (supra).
In the light of the authorities all arguments put forward by Mr. Fa that the appellant's former counsel had no authority to compromise
or that ALTA takes precedence are devoid of merits.
The idea of appealing against the consent order is misconceived. The proper course was to proceed by way of fresh action for the purpose.
At the time the consent order was made the application before the Tribunal (whatever its terms were) was intended to be withdrawn
by the appellant which in fact was done after the order (according to Record). Hence there was nothing before the Tribunal for its
consideration or any application pending before it.
In any case it was well within the jurisdiction of the Magistrate's Court under the Decree referred to hereabove to have made the
Order it did on the facts and circumstances of this case.
For these reasons the appeal is dismissed with costs to be taxed if not agreed.
D. Pathik
Judge
At Suva
14 October 1998
Hba0025j.97s
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