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Nagaiya v Prasad [2005] FJHC 251; HBA0002J.2004B (26 August 2005)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL APPEAL

CIVIL APPEAL NO. HBA0002J OF 2004B

BETWEEN:

EDWARD NAGAIYA father’s name Saimon
Naigaiya Retired School Teacher of Naodamu, Labasa.
APPELLANT

AND:

RAM PRASAD father’s name Asha Ram
Maharaj, Retired School Teacher of Delai Labasa.
RESPONDENT

Counsel for the Appellant: P. Ram ) Gibson &

Ms S. Prasad ) & Co.
Counsel for the Respondent: In Person

Date of Judgment: 26.07.05
Time of Judgment: 10.00 a.m.

JUDGMENT

The Respondent is the registered proprietor of all that land described as Crown Lease No. 107816 being Lot 16 on Plan M2418 situated at William’s Place, Labasa. The Respondent is a school teacher.

On 20 May 2001 the Respondent entered into a tenancy agreement over the said property, with the Appellant, a retired school teacher. The term was 2 years at a rental of $310.00 per month. The Agreement had all the usual covenants separating the rights and obligations of a landlord with his tenant. The Appellant soon after, began to default in his rental payments and the Respondent successfully had him removed following High Court proceedings in April 2002. At the time of the Appellant’s eviction, he left behind, according to the Respondent, 7 month’s arrears in rent of $2170.00 and unpaid utility bills of $137.43. The Respondent further alleged that the tenant had taken some items of furniture with him from the premises when he moved out.

In CA0083.2002 at the Labasa Magistrates Court, the Respondent tried and successfully claimed from the Appellant the sum of $3,332.54 representing back rent, utilities and costs. The Appellant was unrepresented. He nevertheless counter-claimed for $2,820.80, which he argued, was the amount paid in rent to the Appellant, but which payment was illegal because the latter had not obtained the approval of the Director of Lands before renting the premises to him. The learned magistrate dismissed his counterclaim.

This is the appeal from the learned magistrate’s decision. Essentially, the ground of appeal is that the tenancy agreement was illegal and therefore unenforceable since the consent or approval of the Director of Lands had not been obtained.

It is agreed that the land in question is a leasehold. The document states that “this lease is a Protected Lease under the provisions of the Crown Lands Ordinance” (succeeded by the Crown Lands Act [Cap 132]). Section 13 of the Act defines the nature of Protected Leases as follows:

“13 – (1) Whenever in any lease under this Act there has been inserted the following clause:-

“This lease is a protected lease under the provisions of the Crown Lands Act’ (hereinafter called a protected lease) it shall not be lawful for the lessee thereof to alienate or deal with the land comprised in the lease of any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever, nor to mortgage, charge or pledge the same, without the written consent of the Director of Lands first had and obtained, nor, except at the suit or with the written consent of the Director of Lands, shall any such lease be dealt with by any Court of law or under the process of any Court of law, nor without such consent as aforesaid, shall the Registrar of Titles register any caveat affecting such lease.”

The provision makes clear that a lessee of a protected lease may not alienate or deal with the land in any form whatsoever, unless the written consent of the Director of Lands had first been obtained. This also includes any Court proceedings which a lessee may contemplate. In addition to the requirements of section 13, Clause 2 of the Lease itself, specifically states:

“2. The lessee shall not transfer, sublet, assign or part with the possession of the demised land or any part thereof without the written consent of the lessor first had and obtained.”

On the evidence presented to the Court, it is clear that the Respondent had failed to obtain the consent of the Director of Lands before entering into his tenancy agreement with the Appellant. While he had obtained such approval in the case of a previous tenant, such approval does not represent a blanket cover for all subsequent or succeeding tenants. Each new tenant represents a new “dealing” under Section 13 of the Act, which would require separate and individual application for approval, as Counsel for the Appellant correctly pointed out.

What then is the consequence of non compliance? Section 13 (1) further states that:

“Any sale, transfer, sublease, assignment, mortgage or other alienation or dealing effected without such consent shall be null and void.”

There can only be one conclusion to the question of the status of the tenancy agreement between the Appellant as tenant and Respondent, the landlord. Without the approval of the Director of Lands, the agreement is null and void and of no legal effect. There is also the question whether the consent of the Director of Lands had been obtained prior to the Respondent commencing proceedings with CA 83/2002 or with its S.169 Land Transfer Act proceedings (CA 15/2002) in the High Court of 12 March 2002. In the circumstances, the Respondent cannot enforce or claim any rights under the tenancy agreement.

The appeal succeeds. The judgment of the learned magistrate is set aside.

I award costs of $200 to the Appellant.

F. Jitoko
JUDGE

At Labasa
26 July 2005