IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Action No. HBC 297/1993L

BETWEEN

SUBASHNI RAMLU
of 41 Trafalgar Street, Glenfield, New South Wales, Australia
as Administrator of the Estate of Simadri Ramlu late of
41 Trafalgar Street, Glenfield, New South Wales, Australia
Plaintiff

AND

NATIVE LAND TRUST BOARD
a body corporate duly constituted by
the Native Land Trust Act (Cap. 134)
Defendant

Appearances:
Plaintiffs: Mr K. Kumar
Defendant: Ms K. Kabu

Dates of Hearing: 23/02/08, 28/03/08, 28/04/08
Date of Judgment: 29/05/08

JUDGMENT

1.	Introduction

This proceeding began with the issue of a Writ of Summons in the High Court of Fiji at Lautoka on 8 September 1993. It centres upon Native Lease No. 14403 (the lease) which was issued for twenty-five years on 1 October 1968, expiring on 30 September 1993. 

1.1	At some time during the course of the lease, Mr Simadri RAMLU, the leaseholder (now deceased), travelled together with Mrs Subashni RAMLU, his wife, the Plaintiff, to Australia. Mr Ramlu was, however, concerned to renew the lease. Consistent with this, says Mrs Ramlu, when in Fiji in February 1992, at the request of Mr Ramlu she made enquiries of the Defendant, the Native Land Trust Board (NLTB), Lautoka office as to the requirements governing renewal of the lease, most particularly what Mr Ramlu should do to renew the lease.

1.2	The parties are in dispute as to what happened at that time and thenceforth. They are further in dispute as to if what happened at that time is as Mrs Ramlu attests, then what it means and what effect if any it has upon the central question, namely the renewal or failure to renew the lease. 

1.3	The NLTB says that the lease was not renewed because the required steps were not taken by Mr Ramlu. The NLTB says that it was necessary for a written request for renewal to be made to the NLTB one year before expiration of the lease. As no such written request was made, the lease held by Mr Ramlu expired and a lease was granted to another lessee. 

1.4	Mrs Ramlu says that she conveyed to Mr Ramlu the representations made to her and hence Mr Ramlu relied upon the representations made to her in February 1992 at the NLTB Lautoka office, that:

•	There was no need to formally write to the NLTB for renewal of the lease;
•	The lease would be renewed if Mr Ramlu called at the NLTB offices before expiration of the lease, even a few days before, to notify the NLTB of his desire to renew the lease.

1.5	If Mrs Ramlu’s version is accepted, then it is said for her that the NLTB waived its right, or any right it had whether under statute or otherwise, to enforce its requirement as now stated that one year’s notice had to be given for renewal of the lease; alternatively, it is said for Mrs Ramlu, the NLTB is estopped by the representations made to her by an officer of the NLTB as to lease renewal, from asserting and applying the ‘one year’s notice rule’.

1.6	For the NLTB it is said that even if Mrs Ramlu’s version is accepted, judgment should nonetheless be in its favour: that is, neither waiver nor estoppel applies. Amongst other matters, the NLTB said that under principles governing equity, the Plaintiff must ‘come with clean hands’ so to be availed of the remedy sought. In this regard, said the NLTB, the failure to provide an address and contact details to the NLTB when removing to Sydney, Australia in 1985; going to Australia so as to leave the land vacant, as well as ‘removing their concrete based, tin house’; and failing to advise they were going, meant that this ‘clean hands’ requirement was not fulfilled. The Plaintiff had, said the NLTB, by this failure not honoured the landlord-tenant relationship or complied with its terms.

2.	Agreed Facts

The Minutes of Pre-Trial Conference list the following as agreed facts:

1.	Simadri Ramlu (father’s name Simadri) (Mr Ramlu) was the registered lessee of Native Lease No. 14403 (the lease).
2.	Mr Ramlu died on 18 February 2006 and on 9 June 2006 the Supreme Court of New South Wales granted Letters of Administration in favour of Subashni Ramlu and the Letters of Administration were re-sealed in the High Court of Fiji on 8 November 2006.
3.	The lease was for twenty-five (25) years commencing 1 October 1968, expiring on 30 September 1993.
4.	Mr Ramlu continued to pay all rentals and posses a receipt issued by the NLTB for rental paid up to 31 December 1993.
5.	In or about March 1993 the NLTB wrote to Mr Ramlu at an address listed as c/- Barclays Bank, Lautoka. The NLTB letter purported to enquire whether Mr Ramlu was interested in renewing the lease. That letter was not received by Mr Ramlu and was returned to NLTB undelivered.
6.	On or about 22 September 1993 Mr Ramlu called at the NLTB office at Lautoka to enquire about and [express] his desire to renew the lease.
7.	The NLTB advised Mr Ramlu that the lease could not be renewed because Mr Ramlu had not written to the NLTB within one (1) year of expiration of the lease by way of a notice advising the NLTB of his interest in renewing the lease.
8.	Mr Ramlu through his solicitors and by letter of 29 September 1993 wrote to the NLTB requesting the NLTB to extend time for notice to be served on the NLTB pursuant to Regulation 16 of the Native Land Trust (Leases and Licenses) Regulation. This letter was written without prejudice to Mr Ramlu’s rights therein and the letter informed the NLTB amongst other matters to treat it as a notice of renewal.
9.	The NLTB did not respond to Mr Ramlu’s solicitor’s letter of 29 September 1993.

3.	Facts and Issues to be Determined

The minutes of Pre-Trial Conference list the following as facts and issues for determination:

1.	Whether on or about 18 September 1992 Mr Ramlu, through is agent Mrs Ramlu, made enquiries with the NLTB on renewal of the lease and was advised by an estate officer of the NLTB, amongst other matters:

(i)	That there was no need to formally write to the NLTB for renewal of the lease.

(ii)	That the lease would be renewed if Mr Ramlu would call at the offices of the NLTB before expiration of the lease, even a few days before, and inform the NLTB of his desire to renew.

2.	Whether Mrs Ramlu then informed Mr Ramlu of the advice as in para 1 and Mr Ramlu relied upon it as correct and effective.

3.	Whether on or about 22 September 1993 Mr Ramlu called at the office of the NLTB at Lautoka and in accordance with the alleged earlier advice of the NLTB (per para 1) Mr Ramlu informed the NLTB of his desire to renew the lease.

4.	Whether the NLTB by its aforesaid conduct was estopped from refusing to accept Mr Ramlu’s application for renewal of Native Lease No. 14403 or ALTERNATIVELY whether the NLTB waived the requirement upon Mr Ramlu in Regulation 18 of the Native Land Trust (Leases and Licences) Regulation.

5.	Whether Mr Ramlu has suffered any loss or damages as a result of the NLTB’s alleged conduct.

6.	Whether Mr Ramlu is entitled to the following declaration and orders:

(a)	Declaration that the NLTB was estopped from refusing to renew the Native Lease No. 14403 in favour of Mr Ramlu or ALTERNATIVELY for a declaration that the NLTB has waived the requirement upon M Ramlu n Regulation 18 of the Native Land Trust (Leases and Licences) Regulation.
(b)	The NLTB pay damages to Mr Ramlu.
(c)	Costs of this action.

4.	Evidence at Trial

Mrs Ramlu, Mr Mohammed Aiyub Khan, Mr Surendra Naidu and Mr Josetaki Vuluma appeared as witnesses for the Plaintiff. Mr Akuila Ratu appeared as witness for the Defendant. Generally the following evidence was given on oath by each of the witnesses.

PLAINTIFF’S WITNESSES

4.1	(a)	Mr Mohammed Aiyub Khan: Home Loan Specialist of Bulla Place Lautoka, Mr Aiyub Khan’s evidence was that he was for twenty-seven years with Barclays Bank, Lautoka. Barclays Bank ceased operations in Fiji in June 1985. It was taken over by ANZ banking Company and henceforth the ANZ Bank was the only branch in Lautoka which existed to undertake the banking business previously the business of Barclays Bank in Lautoka.

4.2	In cross-examination, Mr Aiyub Khan said that he was in Labasa with the Bank of New Zealand at that time of Barclays Bank’s closure in Lautoka. However, he said, to his knowledge ANZ took over the running of Barclays Bank, including the daily running of the business Barclay’s Bank had undertaken in Lautoka. The staff were transferred to ANZ Bank so that any mail for Barclays Bank would be forwarded through the offices of ANZ Bank.

4.3	In re-examination Mr Aiyub Khan said that in 1989 he relocated to Lautoka. The actual branch premises of Barclays Bank closed and ANZ took over Barclays Bank business through its own premises.

4.4	(b)	Mrs Subashni Ramlu: In short compass, in her evidence in chief Mrs Ramlu told the Court she works in New South Wales, Australia as a receptionist to a medical practitioner. She and Mr Ramlu resided in Lautoka until they went to Australia in 1985. In February 2006 Mr Ramlu died. Letters of Administration were granted to Mrs Ramlu.

4.5	Mrs Ramlu identified Native Lease 144-3 which became Exhibit P1. She said it was vacant land when she and Mr Ramlu entered onto it. They built a house, which required grading of the land. The whole cost was some $10,000-$12,000. The 25 year lease ran from 1 October 1968 to 30 September 1993. When she and Mr Ramlu went to Australia there were some 9-10 years of the lease to run. They paid rent on the land up to and including 31 December 1993. 

4.6	In 1985 she and Mr Ramlu were residing in Australia. In February 1992, Ms Ramlu said, she travelled to Fiji for one week, a purpose being to go to the NLTB to request advice on how lengthy the notice was required to be for renewal of the lease. She arrived in Nadi, Fiji on 15 February 1992. On 18 February she visited the offices of the NLTB in Lautoka, together with her brother-in-law. She said she spoke at the counter of the NLTB Lautoka office with a ‘Fijian lady "Mere"’, saying that her husband’s lease ‘expires in October 1993’ and she asked ‘how long notice is required’. The receptionist (Mere) directed her to a man in an inside office. This was a ‘Fijian man’, name unknown, to whom she showed a copy of the lease and asked how long notice as required for renewal. She said that the man responded by saying: ‘You don’t need any notice.’ She said she then asked how to renew the lease. He asked ‘where did she and Mr Ramlu live’. She responded by saying ‘Sydney, Australia’. Mrs Ramlu said that the Fijian man then said: ‘Come in 2-3 days before and make sure you bring the original lease.’

4.7	Relying upon that information, Mrs Ramlu then returned to Australia on 22 February 1992, there telling her husband that ‘1-2 days prior’ to expiry of the lease was the length of time required. Accordingly, Mr Ramlu ‘came to Lautoka on 22 September 1993 because we believed that we still had enough time’ to renew the lease. Mrs Ramlu said that Mr Ramlu wrote a letter in July 1993 to the NLTB, saying: ‘I’m coming in September for renewal of the lease.’

4.8	Mrs Ramlu said: 

As I came out of the office that day my brother-in-law was waiting for me at the reception counter and I repeated the story to him. I remember it as clear as daylight. My husband is a perfectionist.

4.9	As to payment of the rent, Mrs Ramlu said that this was ‘always sent by bankdraft to the NLTB with a covering letter’. This had the Sydney address, and a ‘receipt was sent later to our address in New South Wales Sydney’.

4.10	Mrs Ramlu said that she and Mr Ramlu had ‘never received any letter from the NLTB’ in relation to the lease. She reconfirmed that the NLTB accepted rent until the end of December 1993. She said further that she ‘was told there would be reimbursement’ of the December rent. She said that she believed that the NLTB had re-leased the land to someone else and that as she understood it that was ‘in breach of a court order’. However, she believes that the land is still vacant. Upon returning to Fiji for the court case she visited the land and ‘found the grass was up to my neck’. The ‘original slab and foundations [for the house she and Mr Ramlu built] are still there’. There are ‘tall grasses with no one there and dumped old engines’. She said she and Mr Ramlu had ‘fenced 5½ acres with a goat fence and had graded 2 acres for pineapple growing’. Their intention was to take up these methods of earning income upon returning to Fiji. 

4.11	The house was ‘lost in 1985 when Cyclone Eric came’ and she and her husband ‘went to Australia to work hard to earn money and return to Fiji’. Mrs Ramlu identified various documents which became exhibits in evidence. Additionally Ms Ramlu said that the NLTB had leased the land to someone else ‘in breach of a court order’ she and Mr Ramlu had taken action to secure.

4.12	Mrs Ramlu put forward estimates of what had been spent by her and Mr Ramlu on the land, including some $4,000-$6,000 (fencing), and some $8,000 (house) in labour and transport, petrol and people to do the fencing, and $3,500 had been spent on a borehole – this work being undertaken on the land by an engineering company in Ba. A number of documents were put to Ms Ramlu for identification during the course of her evidence.

4.13	In cross-examination, Mrs Ramlu identified the location of the NLTB Building in Lautoka, saying it was ‘near the roundabout’ and giving a street name which she said sounded like the location. Asked about her evidence of visiting the NLTB Building in Lautoka in February 1993, Mrs Ramlu again identified the woman she spoke with as a ‘Fijian woman named "‘Mere"’. As to the ‘Fijian man’, she had no name for him. She said he was ‘tall and dark and fairly well built’. She said she ‘didn’t take his name as I didn’t think it was necessary’. 

4.14	She confirmed that in 1985 she and Mr Ramlu had gone to Australia. She is an Australian citizen, born in Fiji and her intention and that of Mr Ramlu was to return to Fiji. They have a 29 year old son and two grandchildren in Fiji and wanted to return to ‘make them happy’.

4.15	Asked whether consent had been given by the NLTB for she and her husband to build on the leased land, Mrs Ramlu said that they ‘did a plan and submitted it to the NLTB’. Asked whether there was no consent to the improvements on the land, she said: ‘If the lease was in my husband’s name then I thought we were able to do what you like.’ (I note here that the lease provides that a tenant is obliged to build a dwelling: ‘The lessee shall within two (2) years from the date of commencement of this lease erect on the land hereby leased to the satisfaction of the lessor and in accordance with the Public Health Regulations for the time being in force a dwelling house having a minimum floor space excluding any accessory outbuildings of six hundred (600) square feet: 92), Memorandum of Lease. (Class B-Residential))

4.16	It was put to Mrs Ramlu that the land was 10 acres and classed as ‘residential’. She responded: ‘May be so.’ She was asked whether receipts for the rent had been collected from the station in Lautoka (office of the NLTB). Mrs Ramlu repeated her evidence in chief that receipts had been received by them (her and Mr Ramlu) through the mail. She said that their Belmore address in New South Wales was on correspondence. However, she and Mr Ramlu had ‘not received any letter from the NLTB in 1993’ relating to renewal of the lease.

4.17	Put to her that the NLTB says they ‘don’t send receipts’ Mrs Ramlu said that they (she and Mr Ramlu) ‘received receipts [for payments of rent, from the NLTB] through the post’.

4.18	Raised with her was that a letter relating to the assignment of the lease had been sent to Mr Ramlu c/- Mrs Ramlu, Barclays Bank in Lautoka. Mrs Ramlu said she had been an employee of Barclays Bank. It was put to her that she and Mr Ramlu did not advise the NLTB of their new address in Australia, nor that she and Mr Ramlu were leaving for Australia. Mrs Ramlu said that it was ‘just after Cyclone Eric’ that she and Mr Ramlu went to Australia. 

4.19	She was questioned about the dwelling that had been built on the leased land and Mrs Ramlu describe it as a timber and iron dwelling, consisting of two bedrooms, a lounge, kitchen and bathroom. It was demolished in January 1985 by Cyclone Eric and ‘just after that we went to Australia’. Asked whether that was a ‘sign they were not coming back’, Mrs Ramlu said ‘No’.

4.20	When put to her that there was ‘no Fijian man’ (at the NLTB Building in February 1993) Mrs Ramlu said: ‘Sorry, I do not agree with you.’

4.21	Mrs Ramlu said that the land is now ‘a vacant block’ without any dwellings or buildings on it. She and Mr Ramlu had been residing there when they left Fiji. That the lease was a ‘Residential B’ lease was drawn to her attention in the witness box by putting the lease to her, its being put to her that renewal of the lease requires written notice.

4.22	(c)	Mr Surendra Naidu: Mr Surendra Naidu said he is a taxi drive who is aged 37 years. He said he knows Mrs Ramlu. When she came to Fiji he picked her up form the airport and ‘brought her to the NLTB in my taxi from my home’. He said: 

We went together to the counter. She talked to a Fijian girl at the counter. Then she went back, and she came back [to the front where Mr Naidu was waiting] in 15 minutes.

4.23	Mr Naidu said that when she came back, Mrs Ramlu ‘told me that she had been told to send her husband back [to the NLTB] one week before. I would take him to the NLTB.’

4.24	He said: 

Yesterday I took her to the land and it has grass up to this level [ at this point Mr Naidu indicates his chest]. There was nothing there except the ground floor – the concrete floor. And there were cars with no engines.

4.25	In cross-examination, Mr Naidu said that in February 1992 (sic) ‘I came with Mrs Ramlu once and later I told her to send her husband and I would take him’. He said that the Fijian man ‘told Mrs Ramlu to send your husband before that one week’s time’ (of expiration of the lease). He said: ‘I was at the counter.’ He agreed that what he knew was what Mrs Ramlu told him.

4.26	Mr Naidu said that when Mr Ramlu came back to Fiji to renew the lease: ‘I brought him from the airport to home and to the NLTB when he came.’

4.27	(d)	Mr Josetaki Vuluma: Mr Vuluma told the Court he is a Real Estate Agent who has worked for eight years in real estate and has ‘sold a lot of land over that time’. Recently he noted a Native Lease of 1 acre is valued at $7,000. The owner of the land engaged him to value the land. He said that the land the subject of the lease in this proceeding is valuable land. It is ‘top land’ as one can ‘see Lautoka clearly as well as all of Ba’. The land valued for $7,000 was between the lower half and top half of the hill – that is, halfway up the hill. 

4.28	As the evidence is understood, this was put forward as a comparator vis-à-vis the value of the land the subject to the lease in the present proceeding.

4.29	In cross-examination Mr Vuluma said his registered office is in Wayabe, 3 Calcutta Street. In respect of the land valued or sold for $7,000 an acre, he said that no title was given in relation to that land which is land of the property of Teidamui. One of the Teidamui Village people asked Mr Vuluma to value the land: 

They told me to find out the value of one piece of land (1 acre) if someone wants to buy it. I told them to list the land and if they give me a title I can see about selling it.

4.30	Asked how he valued the land, he said that ‘land on the other side sold at $15,000 and it was freehold land’: 

I figured out $7000 as this is leased land and the land for $15,000 is freehold land.

4.31	He said: 

One man came to me looking or land. I went to the owners and they said they own it and I asked if they would lease it. The European man making the enquiry said he would pay $7000 as it is native title land.

4.32	Mr Vuluma said he is not a registered valuer. However, he values for real estate purposes. He does this by ‘looking at prices of land around’. Asked if the land he valued was part of the [Native title] subdivision, he said he did not know if it is apart of that subdivision, he ‘only knows it is [Native title] land’.

DEFENDANT’S WITNESS

4.33	(e)	Mr Akuila Ratu: Mr Ratu told the Court he is an Estate Officer with the NLTB and has been with the NLTB for some 19 years. In the role of Estate Officer he deals with lease applications and processes, and undertakes field inspections of land as well as consultations with landowners and attending to office enquiries and engaging in other related duties. 

4.34	Mr Ratu said he is familiar with the file in relation to the lease that was held by Mr Ramlu. He also is able to speak as to the processes governing renewal of a lease. He said that ‘one to two years before the lease expires, the tenant must write in a letter to the NLTB that the lease is to be renewed’ (that is, as I understand it, that the person is requesting a renewal of the lease). Once the NLTB receives such a letter, then it must follow the processes set down for renewal of leases. He emphasised that the tenant must notify the NLTB as to renewal of a lease, and this must be done by writing a letter. 

4.35	This is the procedure, Mr Ratu said, that the NLTB follows, with the letter from the tenant then triggering consultations with the community landowners. An officer from the NLTB goes in to the leased land for inspection. As to consultation, Mr Ratu said this is conducted with the whole of the landowners: they are notified and consulted and give advice as to whether it is good to renew the lease. 

4.36	Asked by Counsel for the Defendant whether there is a need for the consent of the landowners for renewal of a lease, Mr Ratu responded: ‘Yes.’

4.37	Mr Ratu said that insofar as acknowledgement of rentals is concerned, the Lautoka office of the NLTB is a ‘collection station’ and this is where people/tenants who pay rent collect their receipts. He referred in this regard to receipts relating to the land leased by Mr Ramlu and said that on the receipts the letters ‘LTK’ mean it is the Lautoka office (collecting station) that is referred to a receiving the rent. The receipts say ‘cash’. (NLTB receipts dated 3 February 2002 (No. 245453) and 16 December 1992 (No. 259268) were listed in Schedule 1, Part 1 of the List of Documents attached to the Supplementary Affidavit Verifying Plaintiff’s List of Documents; Exhibits P17 and P18)

4.38	Mr Ratu said there is no record that Mrs Ramlu visited the Lautoka office of the NLTB in 1992 or 1993. He did, however, state that the person in charge of or handling Mr Ramlu’s file at that time was a ‘Fijian man’.

4.39	By reference to documents it was noted that the NLTB letter relating to renewal of the lease went to Mr Ramlu c/- Mrs Ramlu at Barclays Bank in Lautoka: this was the letter of 1 March 1993 from the NLTB to the Ramlus, which was returned to the NLTB: Exhibit R2 An exhibit being the 21 July 1994 refund letter (relating to the refund of the December rent) was tendered (see list of Exhibits).

4.40	Mr Ratu said that the land in question was vacant bushland with shrubs growing on it and no improvements, apart from the foundation (referred to by Mrs Ramlu and Mr Naidu in evidence for the Plaintiff).

4.41	A new lease was issued to a new tenant because the Ramlu lease was terminated, said Mr Ratu. He said that when a lease expires the right to the land reverts back to the land owners. An applicant for a lease must come with the consent of the land owners. This requires going in to inspect the land (as earlier referred to by Mr Ratu) and meeting with the land owners to verify the consent. Once this has been done, he said, then a letter goes to the applicant that the NLTB is offering a new lease.

4.42	In cross-examination, Mr Ratu confirmed that what happened in relation to the land over which Mr Ramlu had held a lease was that the NLTB processed a lease to another person.

4.43	Mr Ratu confirmed that he has been some 18 years with the NLTB. He has been based in Lautoka since 1992, he said, however at that time he was not in his current position. 

4.44	Mr Ratu confirmed that insofar as the term of the lease to Mr Ramlu was concerned, it ran from 1 October 1968 to 1 October 1993. It was confirmed by Mr Ratu by reference to the file that Mr Ramlu had paid rental in respect of the land and lease through 1993.

4.45	Mr Ratu confirmed his earlier evidence that a leaseholder must apply 1/2 years before expiry of the lease for renewal of the lease. Asked whether the leaseholder can apply more than 2 years prior it appeared that he acceded to this (by reference to his agreement that an application made in 1997 in respect of expiry of a lease in 2000). It was put to him that he was not wholly familiar with the requirements of renewal under the regulations Mr Ratu did not appear to respond.

4.46	Mr Ratu was asked about the ‘takeover’ of Barclays Bank by ANZ and confirmed that when he started in 1990 in Lautoka ‘Barclays where no longer there’. 

4.47	A number of Exhibits were put to Mr Ratu. Amongst other matters he not dispute that the letter said to have been sent from Young & Associates and dated 3 September 1993 was received. 

5.	Determinations of Fact

Upon the whole of the evidence presented in this proceeding, both in the Exhibits and the oral evidence (the latter of which is provided in shortened form herein), the following findings are made on the balance of probabilities:

1.	On or about 18 February 1992, Mr Ramlu, through his agent Mrs Ramlu, made enquiries in person with the NLTB at the NLTB office in Lautoka on renewal of the lease on Native Land Known as Tagloli Subdivision Lot 1 Area 4.0468 Hectares; NL 14403 and was advised by a person with the requisite authority (presumed on the evidence to be an Estate Officer of the NLTB) amongst other matters:

i.	That there was no need to formally write to the NLTB for renewal of the lease.

ii.	That the lease would be renewed if Mr Ramlu would call at the offices of the NLTB before expiration of the lease, even a few days before, and inform the NLTB of his desire to renew.

5.1	An issue to be determined here is whether the ‘Fijian man’ who spoke with Mrs Ramlu on 18 February 2008 had authority to make the statements she says he did. If he did not have authority of the NLTB, then what he said would have no status vis-à-vis the NLTB: that is, the NLTB could not be ‘burdened’ with the import or impact of the representations he made and advice he gave: the NLTB would not be responsible and hence in this regard the Plaintiff’s case against the NLTB would fail.

5.2	I have concluded that the representations/advice given by the ‘Fijian man’ referred to by Mrs Ramlu are properly held to be that of the NLTB: that is, the representations/advice are representations/advice of the NLTB. 

5.3	Amongst other matters the determination that he was an Estate Officer, a person in a sufficient position of authority to be accepted as ‘the NLTB’, so that the information and advice he gave is held to have been made by the NLTB, is made by reference to the following:

•	when Mrs Ramlu approached ‘Mere’ at the NLTB, Mrs Ramlu made explicit her request as to her making an enquiry on renewal of a lease;
•	Mere referred her to the ‘Fijian man’ in an office, that is, Mere referred her to the person described by Mrs Ramlu;
•	Mr Ratu was not the person to whom Mere referred Mrs Ramlu (he was not in such a position at that time - 1992), however, Mr Ratu’s evidence is relevant here.
•	Mr Ratu’s evidence was that his own position was that of ‘Estate Officer’ with the NLTB and that it is his job, amongst other matters, to carry out processes for renewal of leases and to provide advice in relation thereto in his role as Estate Officer;
•	In regard to the foregoing, the following applies: 

•	the person with authority to handle renewal of leases and apply the relevant processes and most particularly to provide information and advice on lease renewals is a person in the role of Estate Officer; 
•	it is proper to assume that if this was the nature of the enquiry made to Mere, then Mere would accordingly refer Mrs Ramlu to a person with that authority – that is, such an inference is properly drawn;
•	the NLTB presented as its principal and only witness Mr Ratu, Estate Officer, as the person having authority on matters relating to renewal of leases and the giving of information and advice in that regard;
•	Mr Ratu as Estate Officer was presented by the NLTB as a person with the authority to give evidence on its behalf;
•	Mr Ratu as Estate Officer was presented by the NLTB as the person who was appropriate to give evidence as to matters in the NLTB Ramlu lease file.

5.4	Hence, the NLTB has by its own evidence and witness established that the ‘Fijian man’ to whom Mrs Ramlu states she spoke on the relevant day and who provided her with the information and advice to which she attested, supported the proposition that in giving the advice he did, the ‘Fijian man’ was speaking for the NLTB and had the proper authority to do so. This means that the representations/advice he gave are properly held to be representations/advice of the NLTB.

2.	Mrs Ramlu accordingly informed Mr Ramlu of the advice given by the man described by her who is the man referred to in 1. herein, and Mr Ramlu relied upon that advice as correct and effective.

3.	On or about 22 September 1993 Mr Ramlu called at the office of the NLTB Lautoka and acting in accordance with the earlier advice of the NLTB said by Mrs Ramlu to have been given to her per para 1., Mr Ramlu informed the NLTB of his desire to renew the lease.

5.5	Further matter re above findings. I have also taken into account that the NLTB was able to produce the Ramlu lease file but did not produce to give evidence any officer or person, whether currently employed or employed in the past, who was at the NLTB Lautoka office at the relevant time in the position of Estate Officer or receptionist or counter staff. (Although Mr Ratu stated that the person handling Mr Ramlu’s file at the relevant time was ‘a Fijian man’.)

5.6	That there is no record on the Ramlu lease file to confirm Mrs Ramlu’s visit does not in my view discount her evidence: there was no evidence from the NLTB, for example, that this is the process followed – namely of recording on files all dealings or visits or enquiries and as a matter of judicial notice I accept that within bureaucracies such practices or procedures, if they are required to be followed, are not always followed without exception or lapses.

5.7	I have also had regard to the rule in Jones v. Dunkel (1959) 101 CLR 298; [1959] HCA 8 (3 March 1959). Of course, here there is a difference between the circumstances put forward by the NLTB and what was so in Jones v. Dunkel. In Jones v. Dunkel a key witness was available who could give evidence on the crucial point in issue, however, he was not called. Hence, the inference that had he been called his evidence would not have been supportive of or confirmatory of or consistent with the evidence already given for the party seeking to assert that crucial point. 

5.8	In the present case, the NLTB effectively says that there is no person available to confirm Mrs Ramlu’s not being at the NLTB on the day she says (18 February 1992) or who did not provide her with the advice about which she gives evidence. This is because the NLTB’s position is that Mrs Ramlu did not attend at the NLTB office on the day she says (or as I understand it at any other relevant time) and that no one at the NLTB ever imparted to her the advice she says was imparted to her on that day. For the NLTB, denial of Mrs Ramlu’s evidence is the position it takes, and it rightly challenged her in cross-examination as required.

5.9	It is, as has been recognised on many occasions, difficult to prove a negative. This is not a case where a witness from the NLTB could or should have been brought to say: ‘I saw Mrs Ramlu on that day, however, I told her that it was necessary to put a request for renewal in writing and this was mandatory, and I told her that this necessarily had to be done between one and two years prior to expiry of the lease.’ There is and can be no such witness for, as noted, the NLTB position is that Mrs Ramlu was not there and was hence told nothing as she was not there to be told anything by any NLTB officer.

5.10	On the other hand, the NLTB could have brought the Estate Officer responsible for the Ramlu lease file in 1992, or provided the Court with reasons for its inability to do so – say death, departure from the NLTB and no NLTB knowledge of that officer’s whereabouts etc, or departure overseas, etc. If this Estate Officer had been able to be produced, then that would have provided the Court with an opportunity to take evidence into account as to procedures s/he knew were applied by the NLTB at that time. That Estate Officer could have been subjected to cross-examination. If unable to be produced, the reasons for the absence of this crucial witness were not provided.

5.11	As to ‘Mere’, the NLTB may retain records of who held receptionist positions in 1992 so as to supply similar information (if not, it could have said so). In this latter regard, however, I accept that it may well be a more difficult and less useful enterprise than ‘tracking down’ the relevant Estate Officer or their identity and reasons for absence: the position of receptionist may be subject to greater staff turnover and any relevant or useful ‘negative recollection’ is unlikely to be helpful. Again, the difficulty of proving a negative – as well as the length of time – are noted as substantial impediments to any usefulness of producing the receptionist. Even in such case, however, no evidence to this effect (absence, no knowledge of whereabouts, etc) was brought forward by the NLTB. Further, the existence or non-existence of a receptionist named ‘Mere’ in February 1992 would be less difficult to prove or disprove by reference to employment records – again, however, the length of time is a factor militating against this. 

5.12	In Jones v. Dunkel Menzies, J. said:

In my opinion a proper direction [to the jury] in the circumstances should have made three things clear: (i) that the absence of the defendant [driver] Hegedus as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) that where an inference is open from facts provided by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved to the contrary had he chosen to give evidence is properly to be taken: at 312, para [7] 

5.13	Applying the principle in the different circumstances of this case: 

•	the absence of any NLTB witness such as earlier referred to – most particularly the Estate Officer with the charge of the Ramlu lease file in 1992; or (albeit of lesser significance) receptionist/s at that time (that such a witness would be able to attest to ‘absence’ of Mrs Ramlu or someone asking about lease renewal and their referral to an Estate Officer is accepted as unlikely to be useful) – is not being used to ‘make up any deficiency of evidence’: Mrs Ramlu’s evidence stands on its own;

•	that the NLTB did not call someone in the position aforesaid – particularly Estate Officer with the charge of the Ramlu lease file in 1992 or provide evidence as to efforts to do so and inability so to produce such witness for reasons as aforesaid – death, departure, absence from the jurisdiction, no knowledge of whereabouts, inability through disability or age (or both) to give evidence, etc – means Mrs Ramlu’s evidence can be accepted the more readily (as well as the evidence provided by Mr Ratu for the NLTB that the person handling Mr Ramlu’s file was ‘a Fijian man’ – consistent with Mrs Ramlu’s evidence); 

•	that if any inference is necessary – that what Mrs Ramlu says is true – is the more likely to be drawn because the NLTB could have brought the Estate Officer handling the file at the relevant time or the evidence of absence, death, etc aforementioned and did not do so.

5.14	As is further noted by the Plaintiff in Written Submissions, no Estate Officer handling Mr Ramlu’s file in September 1993 was called by the NLTB nor explanation provided for this.

5.15	Additionally, the NLTB had information about the Estate Officer handling Mr Ramlu’s lease file at the relevant times: Mr Ratu’s evidence was that it was ‘a Fijian man’ – confirming in that regard Mrs Ramlu’s evidence as to her visit to the NLTB office in Lautoka and her meeting with an officer of the NLTB (assumed fairly to be an Estate Officer, as aforesaid). Mr Ratu and Ms Ramlu’s evidence is consistent that ‘a Fijian man’ was equipped by the NLTB (and it appears from the evidence delegated by the NLTB) to provide information and advice as to renewal of leases such as that of Mr Ramlu – NL. 14403.

6.	Further re Evidence re Waiver and/or Estoppel

The NLTB says that Ms Ramlu cannot be ‘right’ about the representations/advice she says she was given by the man at the NLTB Lautoka office, because categorically a lease can be and is renewed only if: the party seeking renewal makes a request in writing; and that request is made prior to one year of the lease’s expiry date. Hence, says the NLTB, there can be no estoppel nor any waiver.

6.1	However, the evidence from the NLTB itself runs counter to this proposition: Exhibit R2 – Letter dated 1 March 1993 from the NLTB to Mr Ramlu 

6.2	Mr Ramlu’s lease was set to expire on 30 September 1993. Exhibit R2 says:

01/3/93 Mon 12:14:34
[Name and Address of Mr Ramlu - c/- Barclays Bank]

Re: Native Land Known as: Tagaloli Subdivision Lot 1
 Area: 4.0468 Hectares; NL. 14403

As you have failed to apply for renewal of your lease in accordance with the provisions of Regulation 18 of the Native Land Trust (Leases and Licenses) Regulations 1984, you have lost your rights to all improvements on the land.

Please let us know by 31st March, 1993 if you wish to have a new lease and remain on the land or not. If we do not receive your written reply by that date, we shall serve on you a notice to vacate the land.

Yours faithfully

(J. Namatasere)
For Divisional Estate Manager (Western): Exhibit R2 – Letter dated 1 March 1993 from the NLTB to Mr Ramlu

6.3	This letter is notable on a number of counts, each of which supports the Plaintiff’s case for waiver and/or estoppel.

1.	The letter indicates that there is on the part of the NLTB a recognition and affirmation of the provisions of Regulation 18 of the Native Land Trust (Leases and Licenses) Regulations 1984, however, the letter refers not to a loss of any right to renew the lease, but to a loss of ‘your rights to all improvements on the land’. It stops at that point insofar as any reference to ‘loss’ of ‘rights’ or ‘entitlements’ or failure to comply with legal provisions and the effect of that failure.

2.	The letter further provides that Mr Ramlu has until 31 March 1993 to advise it of his wish ‘to have a new lease and remain on the land or not’. As noted, the expiration date of the lease was 30 September 1993. This means that Mr Ramlu was given one day over 6 months for notification of renewal, not one year or, even more, ‘between two and one years’.

3.	Further, the letter is dated 1 March 1993, as noted: that means that even as at that date, Mr Ramlu was not considered to have forfeited his lease by reason of a failure to renew in writing: seven months.

6.4	That is, amongst other matters, in the very course of asserting the provisions of Regulation 18, the NLTB affirms a different approach – namely a ‘right’ on the part of Mr Ramlu to renew his lease despite non-compliance with Regulation 18.

6.5	This letter, in my opinion, stands as a strong impediment to the NLTB’s position that neither waiver nor estoppel applies or can be applied.

6.6	A further factor in this is the acceptance, by the NLTB, of rent from Mr Ramlu up to and including the end of December 1993. Albeit some considerable time later the NLTB sought to return $10.00 as a refund taking into account the period from 1 October to 31 December 1993, the NLTB did accept the whole of the rent for the 1993 year albeit its position in this proceeding is that by 1 October 1992 Mr Ramlu had lost his right to seek a renewal of the lease on Native Land NL. 14403. It also appears that the $10.00 refund was not in fact received: it was not enclosed with the letter citing ‘refund’.

6.7	Thus, quite separate and independent from Mrs Ramlu’s evidence, and emanating directly from the NLTB without any intermediary, is evidence that the ‘within one or two years’ renewal ‘rule’ is a rule that was honoured in the breach.

6.8	Mrs Ramlu’s evidence is, of course, crucial: for waiver and/or estoppel to apply, Mr Ramlu must have known, or be found to have known, the advice said to have been given by the NLTB as to a lack of necessity to advise as to a request or wish for renewal of the lease within the two-one year timeframe. It is accepted by both parties that Mr Ramlu did not receive the letter of 1 March 1993: Exhibit R2. At the same time, the Court accepts that Mr Ramlu did receive the information Mrs Ramlu says she imparted to him upon her return to Australia in February 1992, being advice from the NLTB as to requirements for notification of the wish to renew the lease.

7.	Determinations of Law: Estoppel and/or Waiver

I find in this regard as follows:

The NLTB by its aforesaid conduct was estopped from refusing to accept Mr Ramlu’s application for renewal of Native Lease No. 14403.

And/or

The NLTB waived the requirement upon Mr Ramlu in Regulation 18 of the Native Land Trust (Leases and Licences) Regulation.

7.1	(a)	Estoppel: As to estoppel, here there was a contractual relationship between Mr Ramlu and the NLTB at the time the advice was given to Mrs Ramlu, who at the time of the giving of the advice was acting as agent for Mr Ramlu. The advice was given to her as agent for Mr Ramlu, with the advice imparted in the knowledge that Mrs Ramlu was asking in relation to NL. 14403 and that she was asking in relation to land standing in the name of her husband Mr Ramlu as lessee. In any event, as pointed out in Public Trustee of Fiji v. Krishna Nair s/o Embechun Nair (Civil Appeal No. ABU 0010 1996S, 21 April 1997, relying upon Waltons Stores (Interrelate) Ld v. Maher (1987-88) 164 CLR 387, the law of estoppel no longer requires a contractual relationship in order for the doctrine of equitable estoppel to apply.

7.2	In applying the doctrine of estoppel in the present case, I have taken into account what was said by Mason, CJ and Wilson, J in Waltons Stores, as adopted by the Court of Appeal in Public Trustee of Fiji:

… the doctrine extends to the enforcement of voluntary promises on the footing that a voluntary departure from the basic assumptions underlying the transaction between the parties must be unconscionable. As failure to fulfill a promise does not of itself amount to unconscionable conduct, mere reliance on an executory promise to do something, resulting in the promisee changing his position or suffering detriment, does not bring promissory estoppel into play. Sometimes more would be required Humphreys Estate (1987) 1 AC 114 suggests this may be found, if at all, in the creation or encouragement by the party estopped in the other party of an assumption that a contract will come into existence or a premise will be performed and that the other party relied on that assumption to his detriment to the knowledge of the first party

7.3	I have also taken into account the factors set down by Brennan, J. in Walton Stores as applicable here (and as adopted in Gafoor v. Native Land Trust Board [2005] FJHC 317; HBC0306, 2003):

… to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the excepted legal relationship; (2) the representation has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff’s action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act or avoid that detriment whether by fulfilling the assumption or expectation or otherwise.

7.4	Here, a representation was made and advice given to Mr Ramlu, through his agent Mrs Ramlu, that he could renew his lease on land NL. 14403 by attending at the Lautoka office of the NLTB some days before expiry of the lease, namely 30 September 1993. Relying upon that advice, Mr Ramlu followed it. This was to his detriment, because he then found: (a) the NLTB would not renew his lease; (b) the NLTB had already effectively ended his lease; (c) this the NLTB had done by entering into, or purporting to enter into, a lease agreement with another party. This meant that by acting upon the advice given by the NLTB upon which he relied to the knowledge of the NLTB Mr Ramlu suffered detriment. The NLTB is taken to have known that Mr Ramlu relied upon that advice in that: 

•	The NLTB through its Estate Officer imparted that advice to Mr Ramlu;
•	The NLTB knew that Mr Ramlu wished to renew his lease, through the advice given to the NLTB Estate Officer by Mr Ramlu’s agent, Mrs Ramlu, when she made the enquiry and obtained the advice about renewal of the lease;
•	The NLTB knew that Mr Ramlu had not renewed his lease in accordance with Regulation 18 of the Native Land Trust (Leases and Licences) Regulations 1984 which was to be advised to Mr Ramlu per the letter of 1 March 1993.

7.5	The NLTB seeks to distinguish the present case from the authorities on a number of bases. The NLTB says that the legal relationship ‘between the plaintiff and the Board [NLTB] … came to an end when the lease expired in 1993’, and that this action herein is not about estoppel but ‘to do with an individual crying out for not getting his/her lease renewed’. 

7.6	However, the reason for Mr Ramlu’s lease not being renewed is directly related to the advice and representation made to him through Mrs Ramlu by the NLTB as aforesaid and his reliance upon it, so that he acted in accordance with that advice. The legal relationship was in existence at the time that representation was made and advice given, and during the course of that legal relationship Mr Ramlu relied upon it to his detriment and to the knowledge of the NLTB. In any event, as noted, a legal relationship does not have to exist per Walton’s Stores so long as the factors referred to by Brennan, J. therein exist. Here, as noted earlier, they do exist.

7.7	Further, as soon as he found, upon his approaching the NLTB, that he had to make application in writing Mr Ramlu did so through his solicitors. He took prompt steps to rectify the situation which had arisen due to the NLTB’s advice and his acceptance of it and his acting upon it. 

7.8	Estoppel in my opinion applies. Mr Ramlu’s application for renewal of the lease on NL. 14403 should thereby have been accepted by the NLTB and the NLTB was estopped by reason of its advice to Mr Ramlu through Mrs Ramlu, his agent, from refusing to do so.

7.9	(b)	Waiver: Exhibit R2 – the letter from the NLTB to Mr Ramlu, dated 1 March 1993, itself ‘waives’ the requirement that a lease renewal be sought within 2-1 years prior to the expiration of the lease. As earlier observed, this letter by its date and its contents truncates that period to some six-seven months prior to date of expiry.

7.10	The NLTB says that ‘waiver’ cannot apply because the obligation to notify it in writing of his desire to renew the lease lay with Mr Ramlu and it was his advantage which was in issue here: that is, the regulation requiring 2-1 years notice in advance of expiration of the lease advantaged Mr Ramlu because he it was who wished to ‘hold on to’ the lease – that is, renew it.

7.11	The Commonwealth v. Verwayen (1990) 170 CLR, McHugh, J. conducted an extensive review of the authorities on waiver (at 491-97). He concluded that ‘waiver’ was not the appropriate claim in Verwayen: at 496-98

7.12	However, a number of the authorities he cites are relevant to the presence case. McHugh said, in analysing the cases which he said ‘did’ and ‘did not’ embrace ‘waiver’:

Some of the cases which debar ‘a person from raising a particular defence to a claim against him’ … stand outside the categories of election, contract and estoppel. They are not sui generis. They are cases where a statute has conferred a right on A., subject to the fulfillment of a condition for the benefit of B., and B. has waived the condition by taking the next step in the course of procedure without insisting on A. fulfilling the condition. In my opinion, the true basis of the decisions in these cases it that, where the existence of a statutory right depends upon the fulfillment of a condition precedent, a person entitled to insist on the fulfillment of that condition may dispense with its compliance unless it is enacted for the benefit of the public, and that person will be held to have waived compliance with the condition if he or she knowingly takes or acquiesces in the taking of a subsequent step in the course of procedure laid down by the statute after the time for the other person to fulfill the condition has passed. These cases are also, to a certain extent, anomalous. They should be strictly confined so as not to conflict with the more established doctrines of election, contact and estoppel: at 497

7.13	The NLTB in the present case says ‘waiver’ does not apply because the parties here do not fit within categories set out by McHugh, J. in the above passage: namely, Mr Ramlu is the party for whose benefit the condition existed, and it was he not the NLTB therefore who was in the ‘waiver’ position:

The … case law is to be distinguished in this case. Firstly, the Commonwealth case [Verwayen] held that the employer had waived its statutory rights. In this case, the NLTB was awaiting the renewal from the plaintiff. The right to activate or use the statute was the plaintiff’s and not the NLTB. NLTB cannot waiver the relevant legislation because such provision is for the benefit of the plaintiff. Thus, the difference in the case law: Written Submissions, 5 May 2008, p. 4

7.14	However, it appears to me that what McHugh, J. has said can be applied to the position of the NLTB. The NLTB waived the condition vis-à-vis renewal’s being required to be notified in writing within 2-1 year of expiration of the lease. It did this by so advising Mrs Ramlu as Mr Ramlu’s agent, who passed on the advice to Mr Ramlu. Mr Ramlu acted upon it to his detriment. Although this may well be considered (per McHugh, J.’s strictures as to distinguishing waiver from estoppel) to be estoppel rather than waiver, the notion of ‘benefit’ can be applied so as to take in the situation existing between Mr Ramlu and the NLTB. 

7.15	Here, the Regulation confers a right upon Mr Ramlu – namely as to renewal of the lease if he fulfils certain conditions. The Regulation or conferral of right and conditions exist to benefit Mr Ramlu – he will benefit because he has a procedure to follow which, if he follows it, will lead to renewal of the lease; at the same time, these exist to benefit the NLTB because they have a procedure which enables them to operate in an organized manner, knowing what needs to be done to ensure that leases are renewed according to tenants’ wishes or can be passed on to other tenants who apply, if existing holders do not seek renewal. 

7.16	In the present case, the NLTB forewent or waived the Regulation hence giving up its benefit of orderly application in accordance with ‘the rules’ and allowing Mr Ramlu to apply out of time (that is, out of time per the Regulation, but not out of time per its waiver). Once having done this, and Mr Ramlu’s relying upon that waiver, the NLTB cannot now assert that it did not waive the Regulation or that its waiver ‘doesn’t count’ and Mr Ramlu must be bound by the Regulation.

7.17	As it is said by Counsel for the Plaintiff:

Plaintiff case is simply that by the representations made by Defendant’s Estate Officer Defendant has waived the requirement of written notice for renewal of the subject lease.

Defendants’ only witness Mr Akuila Ratu also confirmed that request for written notice one prior to expiration of the lease is not complied [with] in most cases and is not enforced by the Defendant strictly: Written Submission in Reply, 28 May 2008, at 6

7.18	For the Plaintiff, it is said that this means that the NLB ‘by its action have waived the requirement of one year written notice for renewal of subject lease’: Written Submissions in Reply, 28 May 2008, p. 7

7.19	In my opinion, it is consistent with the law relating to waiver to consider that in the present case the NLTB waived the 2-1 year renewal requirement set out in the Regulations. In any event, as I have said, if ‘waiver’ does not apply, estoppel does.
 
8.	‘Clean Hands’ at Equity Principle

The NLTB has raised the issue of ‘clean hands’ and by the conduct of Mr Ramlu says that Mr Ramlu and hence, now, Mrs Ramlu should be denied the equitable remedy of waiver or estoppel by reason of the failure to maintain ‘clean hands’. 

8.1	The factors relied upon by the NLTB as failing to honour or be consistent with the tenant-landlord relationship and hence signifying ‘uncleanliness’ in this regard were:

•	failure to provide an address and contact details to the NLTB when removing to Sydney, Australia in 1985; 
•	going to Australia so as to leave the land vacant, 
•	‘removing their concrete based, tin house’; and 
•	failing to advise they were going off the land and out of the country.

8.2	As to the ‘removal of the concrete based, tin house’: the evidence was that the house was demolished through the ravages of Cyclone Eric in 1985. If the evidence were that following this ‘natural disaster’ demolition Mr Ramlu and Mrs Ramlu removed the remains of the house (bar the concrete base) in my view this could not be viewed as negative to the interests of the tenant-landlord relationship. To leave a destroyed and potentially dangerous ‘partial’ structure or damaged structure on the land would create a hazard that could lead to all manner of problems for the NLTB – children hurt through going onto the land and playing on the damaged structure; complaints about an ‘eyesore’, etc. 

8.3	A term of the lease is that the lessee ‘shall maintain and keep in good repair and tenantable condition to the satisfaction of the lessor all buildings erected upon the land hereby leased’: (14) It appears to me that removal of damaged construction after a natural disaster would be consistent with this provision rather than inconsistent with it. In any event, this was not raised by the NLTB with Mr Ramlu at the time or at any time after it – except now effectively in the course of this proceeding.

8.4	Had the matter been seen previously as a breach of the tenant’s obligations and duties and hence of the lease, then the NLTB would have and ought to have taken action under the provisions of the lease:

In the event of any breach by the lessee of any covenant or condition in this lease the lessor may enter upon and take possession of the land hereby leased or may at the discretion of the Board impose a penal rent in respect of such breach: (17)

8.5	Raising the matter as a signifier of ‘unclean hands’ at this very late date without, as noted, its having ever been raised since it is said to have occurred consequent upon cyclone Eric in 1985, it has no force now and in the present context.

8.6	I cannot accept that this factor, if it occurred, could fulfill the ‘unclean hands’ proposition.

8.7	I accept that Mr Ramlu would have been well advised to put in writing to the NLTB his address in Australia as a matter of information and notice to the NLTB of where he could be reached. However, I also accept Mrs Ramlu’s evidence that she and Mr Ramlu received receipts relating to the rental payments: Exhibit P17 and P18 

8.8	This does not mean that I reject Mr Ratu’s evidence as to the NLTB Lautoka office being a ‘pay station’. I accept Mr Ratu as a witness who endeavoured to do his best, and did so, in the difficult circumstance where he was obliged to give evidence in relation to a file that had not been his and in relation to which he had not had responsibility, nor had the carriage of it in the relevant period. 

8.9	The receipts themselves indicate ‘cash’ as the method by which payment was made. I observe however as a matter of judicial notice that when people pay accounts by credit card this is not infrequently labeled ‘cash’. Mrs Ramlu’s evidence was that the payments were made by bankdraft. If they had been made by cheque, then in my view an argument could well be constructed that ‘cheque’ or ‘payment by cheque’ may well have appeared on the receipts. However, even a bankdraft payment, in my onion, could be labeled ‘cash’ or be constructed as a ‘cash’ payment. I do not consider that the word ‘cash’ written on the receipt means that someone came in to the Lautoka office of the NLTB paying cash of $40.00 and issued with a cash receipt on the spot. I accept Mrs Ramlu’s evidence. Hence, the propositioned that no address was supplied to the NLTB, even if it were able to be constructed as a factor going to ‘unclean hands’ does not in my opinion follow in this case. That the letter of March 1993 went to Barclays Bank does not also, in my opinion, indicate that the Belmore, New South Wales address was unknown or not made known by Mr Ramlu to the NLTB.

8.10	Nor am I able to find any indication in the Lease that a removal of residency from the land or going abroad for a period signifies a breach of the landlord-tenant relationship or the terms of the lease. 

8.11	I accept Mrs Ramlu’s evidence that she and Mr Ramlu went to Australia with, ultimately, an intention to return to Fiji to the land in question for the reasons she gave, amongst them reuniting with children and grandchildren, and living on the land to undertake pineapple growing and goat herding.

8.12	The lease does not allow for any activities apart from business activities which are consented to by the NLTB and are associated with the dwelling on the land or undertaken at/in the dwelling on the land:

The lessee shall not use or permit to be used the land hereby leased or any part thereof or the dwelling-house or accessory outbuildings to be erected thereon, for any trade, business, occupation or calling whatsoever; and no act, matter or thing whatsoever shall, during the term of this lease, be done in or upon the said land or buildings or any part thereof, which shall or may be or grow to the annoyance, nuisance, damage or disturbance of the occupier, lessee, or owner of the adjoining lands: Provided that a home industry approved by the lessor in writing or a professional practice may with t he written consent of the lessor first had and obtained be conducted within the dwelling house: (13)

8.13	However, Mr Ramlu and Mrs Ramlu had not insofar as I understand the evidence undertaken any such activities (goat herding, pineapple production) during the time they were resident on the land. There is no evidence of this and the evidence there is does not support this proposition. It was expressed by Mrs Ramlu as a future wish or intention. Hence, and albeit not referred to in respect of ‘unclean hands’ by Counsel for the NLTB, this cannot bring the Plaintiffs into a category to be deprived of access to equitable relief claimed.

8.14	In general terms, and specifically as to requirements and conditions of the lease and the obligations of a lessee or tenant, Exhibit P1 is the Memorandum of Lease in respect of the subject land. That lease contains a number of ‘conditions, restrictions and covenants’. None of them is consistent with the matters listed by the NLTB as bringing into the position of the Plaintiff the ‘unclean hands’ proposition. None of them was breached – at least there is no evidence of any breach and no evidence that the NLTB breached Mr Ramlu for failing to comply with any of these conditions.

8.15	Counsel for the NLTB cogently sought to bring Mr Ramlu and the case into the category of non-compliance with the ‘clean hands’ principle, however, none of the matters raised can do so and there are no other matters in the evidence and before the Court which could do so.

9.	Loss and Damage

Consistent with all the foregoing, I find:

Mr Ramlu suffered loss or damages as a result of the NLTB’s alleged conduct.

9.1	Mr Ramlu was ‘shut out’ from renewal of the lease, a substantial loss in general terms and in terms particular to Mr Ramlu whose intention was to return, together with Mrs Ramlu, to Fiji to live on the land to be close to his children and grandchildren.

9.2	In general terms, where a tenant is granted a renewal of a lease, this will be:

For a further term which shall not be less tan the current term but shall not exceed ninety-nine years;

For the same purpose as the purpose for which the land is presently held …: 18(3)(i)(ii)

9.3	That as it appears there are restrictions on the use of the land which would or may have precluded Mr Ramlu from herding goats and growing pineapples at least for commercial purposes, this does not detract from the not inconsiderable advantages which would have accrued to Mr Ramlu with the renewal of the lease.

9.4	Quantification of loss and damage are a matter upon which the parties will need to make submissions, however, and I have provided in the Declarations and Orders for this to be done.

10.	Declaration and Orders Sought

The Plaintiff seeks the following declaration and orders:

Declaration that the NLTB was estopped from refusing to renew the Native Lease No. 14403 in favour of Mr Ramlu or ALTERNATIVELY for a declaration that the NLTB has waived the requirement upon M Ramlu n Regulation 18 of the Native Land Trust (Leases and Licences) Regulation.

The NLTB pay damages to Mr Ramlu.

Costs of this action.

10.1	In accordance with all the foregoing, Plaintiff is entitled to the following declaration:

That the NLTB was estopped from refusing to renew the Native Lease No. 14403 in favour of Mr Ramlu 

ALTERNATIVELY 

That the NLTB has waived the requirement upon M Ramlu n Regulation 18 of the Native Land Trust (Leases and Licences) Regulation.

10.2	In the Second Amended Statement of Claim, in addition to the above noted declarations and orders, the Plaintiff claims against the Defendant:

For an Order that the Defendant must grant to the Plaintiff –

(i)	An extension of time to forward a notice of renewal of Native Lease No. 14403.

(ii)	A renewal of Native Lease No. 14403 as per the Plaintiff’s letter to the Defendant dated 29 September 1993 in accordance with the Native Land Trust Act (Cap 134): Exhibit P3

For an Order restraining the Defendant from [leasing] the land comprised in Native Lease No. 14403 or any part thereof to any third party.

10.3	The evidence before the Court is that the land the subject of the lease in question, namely Native Land Known as: Tagloli Subdivision Lot 1 Area: 4.0468 Hectares: NL. 14403 remains vacant. It appears that the incoming tenant defaulted in payment of rent and was ejected or that at least that tenancy has not gone ahead. Thus it appears that there should be no impediment to the Court’s granting those orders. 

10.4	As to damages, as I have observed earlier the level of damages should be set by reference to written submissions explicitly setting out the damages sought and the basis upon which the damages are calculated by reference to the evidence before the Court. Further, should the NLTB by reason of a need to consult with land owners find that there is delay in its capacity to issue renewal of the lease, then if that delay continues beyond a certain period in my view liberty to apply should enable the Plaintiff to make representations for a monetary sum to be awarded in compensation for the lease, to enable the Plaintiff to make an alternative purchase of land or lease elsewhere, whether in that vicinity or another. This will require sworn evidence as to the value of the land/lease.

10.5	As to costs, the Plaintiff will have to provide a calculation of costs by reference to the scale and work done, in order that an appropriate level of costs can be awarded.

Declarations & Orders

1.	The Defendant was estopped from refusing to renew the Native Lease No. 14403 in favour of Mr Ramlu.

2.	In the alternative, the Defendant waived the requirement upon Mr Ramlu n Regulation 18 of the Native Land Trust (Leases and Licences) Regulation.

3.	The Defendant is ordered to grant to the Plaintiff –

(i)	An extension of time to forward a notice of renewal of Native Lease No. 14403.

(ii)	A renewal of Native Lease No. 14403 as per the Plaintiff’s letter to the Defendant dated 29 September 1993 in accordance with the Native Land Trust Act (Cap 134): Exhibit P3

4.	The Defendant is restrained from leasing the land comprised in Native Lease No. 14403 or any part thereof to any third party.

5.	Should the Defendant fail to renew Native Lease No. 14403 within 48 days of these Declarations and Orders (solely by reason of the need, if any, to consult with Landowners), the NLTB is ordered to pay to the Plaintiff a sum equivalent to the value of the land/lease, to be calculated by reference to submissions made by the parties according to a timetable to be fixed upon the Plaintiff’s exercising liberty to apply.

6.	Insofar as any other damages sought by the Plaintiff:

(a)	the Plaintiff is to file and serve any written submissions as to damages within 28 days of the date of these Declarations and Orders.

(b)	the Defendant is to file and serve any written submissions in response within 28 days of receipt of the Plaintiff’s submissions;

(c)	the Plaintiff is to file and serve any written submissions in reply within 14 days of receipt of the Defendant’s submissions.

7.	As to costs:

(a)	the Plaintiff is to file and serve within 28 days of the date of these Declarations and Orders a calculation of costs by reference to the scale and work done;

(b)	the Defendant is to file and serve within 28 days of receipt of that calculation of costs any response.

(c)	the Plaintiff is to file and serve any written submissions in reply within 14 days of receipt of the Defendant’s submissions.

(d)	at a date to be fixed, and by reference to that calculation of costs and any response and/or reply, the Court will determine upon the amount of costs to be awarded to the Plaintiff and make judgment accordingly.

8.	Liberty to apply.

Jocelynne A. Scutt
Judge
29/05/08