| Fiji Islands - The State v Director of Lands & Surveyor General; Ex parte Mohammed - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
JUDICIAL REVIEW NO. 13 OF 1998
IGN=CENTER>STATE
E
v
THE DIRECTOR OF LANDS
AND SURVEYOR-GENERAL
Ex parte: JABBAR MOHAMMED
f/n Nur Mohammed and
JA MOHAMMED
as Executor ator and Trustee of the Estate of
ATHA MOHAMMED f/n Mohammed
Mr. H. Nagin for thl Applicant
Mr. N. Barnes for the Respondent
DECISION
Pursuant to leave granted to JABBAAMMED f/n Nur Mohammed (the "applicant") on 25 June 1998 to apply for judiciadicial review the applicant has filed a motion as
required under Or.53 r.5.
The application before me is for discovery of certain documents.
The decision impugned is that of the respondent which is in the following terms as contained in the letter dated 2 June 1998 (annexure
R in the affidavit of applicant sworn 10.6.98):
"Please take notice that the above Tenancy At Will dated 16.10.91 issued in your favour is hereby terminated as from the date
hereof on grounds that the subject area is required for redevelopment in conjunction with further development to be carried out on
adjoining commercial property and also the redevelopment of the site is being pursued to ease traffic congestion in front of Rajendra
Supermarket. You are further advised that on completion of the development, you may apply directly to the Supermarket for taxi bases
at rental to be approved by Director of Lands and Surveyor General.
And take further notice that you are given (30) days notice as from the date hereof to vacate and give vacant possession of the land".
Application for discovery
This application is for an Order that the respondent do provide the applicant discovery of the following documents:
1. All correspondence between the Minister and the Director of Lands and/or the Lands Department in relation to the Land in question.
2. All correspondence between the Minister and/or the Lands Department with Food For Less Supermarket in relation to the Land in question.
3. Minutes of all meetings held by the Minister and/or the Lands Department with Food For Less Supermarket in relation to the Land
in question.
4. All other necessary correspondences and documents in relation to this matter.
The respondent has opposed the application on the ground that the documents sought are not 'relevant' to the issue in dispute.
Background facts and about the Applicant
In view of the nature of the application i.e. application for discovery in a judicial review it is necessary to know the background
facts of the case.
The detailed facts are set out in the applicant's affidavit in his application for leave to apply for judicial review, but suffice
it to say for the present purpose that on 16 October 1991 the respondent approved the Tenancy-at-will to the applicant and to one
Atha Mohammed who ran a taxi business in partnership under the name of "Central Taxis". The applicant is now the executor
and trustee of Atha Mohammed who died on 10.2.98. The land in question is Lot 75 on Deposited Plan 5086 Kalabo Industrial subdivision
having an area of 516 square metres. One of the conditions of the tenancy is that it "may be terminated on receipt of a month's
notice from the landlord".
On application for a lease, on 18 July 1997 the Respondent refused to grant a long term lease of the land to the applicant; and instead
on 2 June 1998 a termination of the Tenancy-at-will by the Respondent was sent to the applicant.
The applicant says that he came to know that "Food for Less Supermarket" which is next door to the land is going to be issued
with a new tenancy over the said land.
The applicant is aggrieved by the said decision of the Respondent and has set out eight grounds on which he relies in his application
for judicial review.
Applicant's submission
Mr. Nagin for the applicant submits that the respondent should give reason for terminating the tenancy at will. He says that there
is an attempt to issue a tenancy in respect of the said land to Food for Less Supermarket which is next door to this land.
He says that justice of the case requires that discovery ought to be granted as prayed for in the motion.
Respondent's submission
Mr. Barnes for the respondent submits that there is no material of the nature before the Court to suggest that the decision-making
process is defective or unreasonable.
He says that this is a tenancy-at-will which is determinable by one month's notice and the respondent does not have to give reasons
for doing so.
Consideration of the issue
Under Or.53 r.8 an interlocutory application for discovery can be made.
Discovery will be ordered whenever, and to the extent that, the justice of the case requires it. It will not be permitted if the questions
go merely as to matter of evidence to be adduced at the hearing. If discovery is ordered it is limited to use in the proceedings
in question. (Book: Application for Judicial Review by Aldous & Elder).
The circumstances in which discovery in judicial review will be ordered are stated as follows in the White Book 1997 under Or.24/3/1:
"As a general principle in judicial review discovery will be ordered where it is required in order that the justice of the case
may be advanced and where it is, within the meaning of O.24, r.8, necessary for disposing fairly of the matter; the Court should
not order discovery, however, where there is no material before it to show that the reasoning of the respondent's decision-making
process is defective or unreasonable or open to challenge, and where the purpose of the application is to study the respondent's
documents to see if some flaw in the decision-making process can be established (R v. Commrs. of Inland Revenue, exp. Taylor [1988]C.O.D.
61, (affd.) [1988] S.T.C. 832; (1989) 1 All E.R. 906, C.A.) See too R v. Secretary of State for Foreign Affairs ex p. World Development Movement Ltd [1994] EWHC Admin 1; [1995] 1 W.L.R. 385; [1995] 1 All E.R. 611 C.A."
I have considered the submission of counsel on the matter.
The affidavit in reply to the application for judicial review is so scanty that, when one looks at the facts surrounding the issue
in the case and the matters referred to in the termination notice, there appears to be some facts missing from the reply.
Granted that it is a tenancy-at-will and determinable on a month's notice, though the Director of Lands says in his decision that
the subject area is being "required for redevelopment in conjunction with further development to be carried out on adjoining commercial property" (my emphasis). This gives the impression that either preference is being given to Food for Less Supermarket than to the incumbent
who is the applicant for judicial review. Lest there be some doubt that the decision may not have been reached in a fair manner to
the exclusion of the applicant in this case, it becomes necessary that there ought to be discovery of certain relevant documents.
This will assist in a proper and early disposal of the case.
In my view this is a proper case in which the application ought to be granted only in relation to items (2), (3) and (4) of the Motion
for Discovery. I do so order but limited to use in these proceedings. The costs are to be costs in the cause.
D. Pathik
Judge
At Suva
17 November 1998
Hbj0013d.98s
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