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Reddy v Krishna [2009] FJHC 221; HBC114.2008L (9 October 2009)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 114 of 2008L

BETWEEN:

WADAVELLU REDDY f/n Murgessan aka Murgessan Reddy
aka Murgessor of 6861-127A Street, Surrey, BC, Canada, Plumber and BALRAM
REDDY f/n Murgessan aka Murgessan Reddy aka Murgessor of 1909-151A Avenue
Edmonton, Alberta, Canada, Plant Operator, both as Administrators De-Bonis-Non of
the Estate of Murgessan aka Murgessan Reddy late of Rarawai, Ba, deceased
Plaintiffs

AND:

GOPAL KRISHNA
f/n Manikam of Rarawai, Ba, Cultivator
Defendant

FINAL JUDGMENT

Of: Inoke J.

Counsel Appearing: Ms V Patel for the Plaintiffs
Mr V Mishra for the Defendant

Solicitors: Vasantika Patel for the Plaintiffs
Mishra Prakash & Associates for the Defendant

Date of Hearing: 1 October 2009
Date of Judgment: 9 October 2009

INTRODUCTION

[1] This is an application under s 169 of the Land Transfer Act [Cap 131] (“LTA”) by the Plaintiffs, Wadavellu Reddy and Balram Reddy, to evict the Defendant, Gopal Krishna, from their late father’s 16 acre sugar cane farm, Crown Lease No 6614, in Ba

[2] Wadavellu and Balram Reddy, who now live in Canada, are the administrators de-bonis non of the estate of their late father, Murgessan Reddy. They became the registered proprietor through transmission by death.

[3] Gopal Krishna, who is a cousin of the Reddy brothers, has been in occupation and farmed the land since February 1993. Subsequently he became a tenant under an Instrument of Tenancy issued under the Agricultural Landlord and Tenant Act [Cap 270] (“ALTA”) in October 2004.

[4] A dispute arose between the cousins over alleged non-payment of rent which led to the solicitors for Wadavellu and Balram Reddy issuing a notice of demand on 25 July 2006 to Gopal Krishna for rental arrears and termination of tenancy and re-entry in default of payment. On 25 April 2008, the solicitors wrote to Gopal Krishna giving him notice that since rental arrears had not been paid the tenancy was terminated and he was to quit and hand over possession forthwith otherwise legal proceedings would be issued.

CASE HISTORY

[5] On 20 June 2008, a Summons for Ejectment was filed in this Court. It is supported by an affidavit by Wadavellu Reddy filed on the same day. Gopal Krishna filed his affidavit in reply on 9 July 2008. The application was first called on 25 July 2008. Gopal Krishna filed a further affidavit on 14 August 2008 and Wadavellu Reddy responded by affidavit filed on 5 November 2008. A further affidavit by Ponrangam Reddy, the lawful attorney and brother of Wadavellu and also brother of Balram, also living in Canada, was filed on 30 January 2009. Both Counsels filed written submissions and the application was partly heard on 21 January 2009 and continued on 20 February 2009 and judgment was to be delivered on 17 April 2009. On 2 September 2009 on my directions both solicitors were asked to advise whether they wanted judgment delivered on the papers or the matter reheard. The matter was called on 18 September 2009 and both Counsels asked that the matter be reheard so the hearing was set for 1 October 2009. Counsels supplemented their written submissions with very helpful oral submissions when the application was heard on 1 October 2009.

BACKGROUND

[6] I take the background facts from the Decision of the Agricultural Tribunal Western Division of 8 September 2003. Murgessan Reddy, the father of Wadavellu and Balram, was the original registered proprietor of the Crown Lease 6614. In 1993, in preparation to migrate to Canada, he entered into a share farming contract with Gopal Krishna. Gopal Krishna’s mother and Murgessan’s wife are sisters. The contract was drawn up by one of Murgessan’s other sons. It was dated 13 February 1993 and stated that starting from 1 January 1993 Gopal Krishna would farm the land and he and Murgessan would share the cane proceeds, less expenses, in equal shares. Gopal would “look after everything” after Murgessan left for Canada. If the farm was to be sold, then it would be first offered to Gopal. Murgessan and his family left for Canada and the arrangement went well for about 8 years until two of Murgessan’s sons returned from Canada in 2001. They brought the Army and the Police and disconnected the water and electricity supply and forced Gopal Krishna off the land. On 19 June 2002, Gopal Krishna applied to the Agricultural Tribunal for an instrument of tenancy and on 8 September 2003 granted him a tenancy from 13 February 1993 until 31 December 2020 and put him back on the land.

[7] Crown Lease No 6614 was registered on 28 August 1981 in Murgessan’s name. Following his death on 3 June 2001, his daughter, Takaliamma, became the sole executrix and trustee of his estate. She became registered as executrix and trustee through transmission by death on 29 July 2002. Following the grant of tenancy by the Tribunal, Takaliamma refused to sign the instrument of tenancy so Gopal Krishna obtained a Court order allowing the Registrar of the High Court to sign the instrument on her behalf. His instrument of tenancy finally became registered in the Register of Deeds on 2 November 2004 as Deed No 9947.

[8] Takaliamma died on 13 December 2004 in Canada so her brothers Wadavellu and Balram applied for and became administrators de bonis non by grant of probate on 17 July 2006. They became registered as administrators of their father’s estate through transmission by death on 13 July 2007.

[9] The solicitors for Wadavellu and Balram sent a notice under s 37(1)(c)(ii) of the ALTA dated 25 July 2006 requesting payment of outstanding rent of $10,760.14 within 3 months or face eviction without further notice. A further notice dated 25 April 2008 was served on Gopal Krishna on 5 May 2008 terminating the tenancy.

[10] On 8 March 2005 in High Court Action HBC 299 of 2003, Gopal Krishna obtained a judgment against Takaliamma for payment to him of all monies held under the Cane Contract attached to the land and for damages which are yet to be assessed. Gopal Krishna denies that he owes any rent and that he has been paying rent to the Director of Lands and the Director has not given him any notice of outstanding rent or to quit.

THE LAW

[11] The law is well settled in this area and I need only quote the following passages:

In Deo v Mati [2005] FJHC 136 in which Pathik J quoted and adopted a passage from the judgment of the then Supreme Court (now the High Court) in Morris Hedstrom Ltd v Ali [Civil Action 153/87]:

"Under Section 172 the person summoned may show cause why he refused to give possession of the land and if he proves to the satisfaction of the judge a right to possession or can establish an arguable defence the application will be dismissed with costs in his favour. The Defendants must show on affidavit evidence of some right to possession which would preclude the granting of an order for possession under Section 169 procedure. That is not to say that final or incontrovertible proof of a right to remain in possession must be adduced. What is required is that some tangible evidence establishing a right or supporting an arguable case for such a right, must be adduced."

In Premji v Lal [1975] FJCA 8; Civil Appeal No 70 of 1974 (17 March 1975) the Court of Appeal said:

“These sections and equivalent provisions of the Land (Transfer and Registration) Ordinance (Cap. 136-1955 Laws of Fiji) have been considered in a number of cases in this court and the Supreme Court. In Jamnadas & Co. Ltd. v. Public Trustee and Prasad Studios Ltd. (Civil Appeal No. 39 of 1972 - unreported) this court said –

"Under Section 172 of the Act the judge is required to dismiss the summons if the respondent proves to his satisfaction a right to possession and it is also provided that the judge may make any order and impose any terms that he may think fit. The dismissal of the summons is not to prejudice the right of a plaintiff to take any other proceedings to which he may be otherwise entitled.

In the past, on earlier but similar legislation, the Supreme Court has held that if the proceedings involve consideration of complicated facts or serious issues of law, it will not decide them on summary proceedings of this nature, but will dismiss the summons without prejudice to the plaintiffs right to institute proceedings by Writ of Summons. Instances quoted by counsel are Caldwell v. Mongston (1907) 3 F.L.R. 58 and Perrier Watson v. Venkat Swami (Civil Action 9 of 1967 - unreported). The power of the court to adopt this approach has not been challenged so it is not material to consider whether it arises under section 172 of the Act or from inherent power to reject as unsuitable procedure, where another, comprehensive and better suited to the determination of controversial matters, is available." “

CONSIDERATION OF THE APPLICATION

[12] On these case authorities, with the factual background that I have stated above, especially with the issue of an instrument of tenancy under ALTA, this application must fail as Gopal Krishna has shown that he has an arguable right to possession and he should not be evicted summarily by this process.

[13] However, much of Counsels’ arguments and submissions were on the very interesting but vexed question which was raised in this application, and that was, whether the provisions of the LTA pursuant to which the Crown Lease was registered overrode the provisions of the ALTA pursuant to which the subsequent Instrument of Tenancy was issued, so I think it is only fair that I give them full consideration.

“ALTA” PROVISIONS

[14] Section 7 of the ALTA provides:

Except in the manner provided by this Act-

(a) no contract of tenancy of any agricultural land subsisting at the commencement of this Act or thereafter shall be terminated by the landlord or by the tenant of such land within the term fixed by such contract or during an extension granted in accordance with the provisions of this Act; and

(b) no contract of tenancy of any agricultural land created after the commencement of this Act shall be terminated as aforesaid within the minimum term specified in section 6.

The minimum period specified in s 6 is 30 years for tenancies created after 1 September 1977.

Section 8 provides:

(1) A contract of tenancy shall be evidenced by an instrument in writing called, in this Act, an instrument of tenancy.

(2) The instrument of tenancy shall be in the prescribed form and shall contain the names and addresses of the parties, the rent provided for and the place at which such rent is payable, the amount of premium or payment for improvements provided by the landlord for the purpose of the tenancy, the term of the tenancy, a sufficient description of the land referred to in such instrument and such other conditions as may be agreed or prescribed.

[16] Section 9 sets out the prescribed conditions, in particular, subsection 2 which provides:

Every contract of tenancy shall be deemed to contain the following clause:-

"This contract is subject to the provisions of the Agricultural Landlord and Tenant Act, and may only be determined, whether during its currency or at the end of its term, in accordance with such provisions. All disputes and differences whatsoever arising out of this contract, for the decision of which that Act makes provision, shall be decided in accordance with such provisions."

(my emphasis)

[17] Section 15 prohibits contracting out of the provisions of the Act and any contract that does so will be null and void.

[18] Section 37 provides for termination of an ALTA tenancy by a landlord, so far as relevant, as follows:

(1) A landlord may terminate his contract of tenancy and may recover possession of an agricultural holding-

(a) ...;

(b) ...;

(c) by three months' written notice to quit-

(i) ...

(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.

[19] Section 38 provides:

(1) A right of re-entry or forfeiture under any proviso or stipulation in a contract of tenancy for a breach of any covenant or condition, express or implied, in such contract of tenancy shall not be enforceable, unless and until the landlord serves on the tenant notice-

(a) specifying the particular breach complained of; and

(b) if the breach is capable of remedy, requiring the tenant to remedy the breach; and

(c) in any case, requiring the tenant to make compensation in money for the breach, and if the tenant fails, within a reasonable time thereafter to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money, to the satisfaction of the landlord for the breach.

(2) In case of relief, the tribunal may grant it on such terms, if any, as to costs or expenses as the tribunal in the circumstances of each case thinks fit.

[20] Section 22(1)(g) gives the agricultural tribunal within each agricultural district, on the application of a landlord or tenant, power to grant relief against eviction, re-entry or forfeiture in respect of any holding whether created or in existence before or after the commencement of the Act.

[21] A landlord or tenant dissatisfied with a tribunal decision may appeal to the Central Agricultural Tribunal under s 48(1).

[22] Clearly, the ALTA sets out the procedure and process by which disputes such as the one in this case are to be resolved.

CASE LAW

[23] Mr Mishra, Counsel for Gopal Krishna, referred me to the Court of Appeal decision in Soma Raju v Bhajan Lal [1976] 22 FLR 163 which is directly on point. One of the grounds of appeal argued in that case was whether the indefeasibility provisions of the Land Transfer Act defeated the title of farmer holding an agricultural tenancy under the then equivalent of ALTA. Spring JA, with whom Gould VP and Marsack JA agreed, said this:

"I agree with the learned judge when he said:

"In my view the right of the plaintiff to have his tenancy terminated in the manner provided by [ALTA] is clearly contrary to the defendant’s contention that as registered proprietor he had the right to enter upon his land notwithstanding the plaintiffs tenancy."

Both counsel referred to Miller v. Minister of Mines [1963] 1 All E.R 109 which was a case where a mining licence granted under the Mining Act 1926 was not registrable under the Land Transfer Act and it was held nevertheless to be a burden on the title of the registered proprietor. Their Lordships at p. 113 said:

"It is not necessary in their Lordships’ opinion that there should be a direct provision overriding the provisions of the Land Transfer Act, 1952. It is sufficient if this is the proper implication from the terms of the relative statute."

Therefore in my view while [ALTA] provides its own individual code for the registration of contracts of tenancy it does not make it mandatory that such registration should be effected; the rights to occupation of agricultural land under [ALTA] exist in law independently of the Land Transfer Act and in my view prevail against the indefeasibility provisions of the Land Transfer Act. Section 13 of [ALTA] states that subject to the provisions for termination contained in [ALTA] a tenant shall be entitled to be granted two extensions to his contract of tenancy each extension to be for not less than 10 years so long as he has cultivated the land and committed no breach of his tenancy (unless he is given one year’s written notice of termination upon the grounds set out in the [Act]). If a contract of tenancy under [ALTA] is not registrable under the Land Transfer Act and the indefeasibility provisions of that Act are to override the contract of tenancy then the tenancy would be of no value to the tenant except as against the original landlord. Upon a transfer of the land the successor would be entitled by virtue of the indefeasibility provisions of the Land Transfer Act to disregard the contract of tenancy. I do not agree that this (could) have been the intention of the legislature in enacting [ALTA] and creating by statute tenancies which can exist for as long as 30 years. In my view I agree with the learned judge when he says:

"I therefore hold that the plaintiff was the lawful tenant of the land and held a tenancy under [ALTA] which prevailed against the plain terms of section 39 and 40 of the Land Transfer Act." "

[24] Similarly, in Azmat Ali v Mohammed Jalil & NLTB [1986] FCA; Civ App 111 of 1985, the Court of Appeal held that agricultural tribunals appointed under the ALTA can make declarations of tenancies without making them subject to the consent of the NLTB. In other words the ALTA provisions override the Native Land Trust Act provisions. The history behind this case is that in 1975 Azmat Ali and Mohammed Jalil entered into a share farming agreement which allowed Ali to plant and harvest sugar cane on 25 acres out of 194 acres of native land leased by Jalil from the NLTB. The agreement was entered into without the consent of the NLTB. In April 1980 Ali applied to the Agricultural Tribunal for assertion of his rights as a tenant. In May 1981, Jalil applied under s 169 of the LTA and the High Court ordered that Ali give up vacant possession of his 25 acres. It was open to the Judge to stay the eviction pending the outcome of the Tribunal hearing but decided against any stay and made an order for possession. The matter came before the Court of Appeal in March 1982 in Civil Appeal 44 of 1981 just on the question of stay. The Court held that the refusal of a stay involved some risk of injustice to Ali and set aside the eviction order and adjourned the High Court proceedings pending the outcome of the Tribunal hearing. The Agricultural Tribunal and the Central Agricultural Tribunal found in favour of Ali and Jalil applied to the High Court under the Court’s supervisory jurisdiction for a declaration that the tribunal decisions were null and void under s 12 of the Native Land Trust Act because no prior consent of the NLTB had been obtained. The High Court agreed and held that tribunal award could only be made subject to the consent of the NLTB and the absence of such consent made the award null and void. Ali then took the decision on appeal to the Court of Appeal in Civil Appeal 111 of 1985. Judgment of the Court was delivered on 23 July 1986. It had taken 5 years for the point to be decided.

[25] At page 12 of the Judgment, the Court of Appeal said:

"A person seeking a declaration of tenancy under ALTA, however, has no contract and, therefore, no right (to sublet) so arising. His right to a tenancy is created not by any agreement but, under section 4 of ALTA, by Parliament itself, the ultimate repository of all power. The tribunal is merely the machinery to give effect to that right. Section 23(3) requires that it shall declare a tenancy and direct that a contract of tenancy be entered into, but only where it considers it just and reasonable so to do...

When after a hearing the tribunal, the ultimate judge of reasonableness, does make a declaration, the Parliament, in our view, must be taken to have intended that such a declaration of a statutory right be binding upon everyone including the Crown, NLTB or any other holder of title."

[26] That ‘other holder of title’ would, in my view, include the Director of Lands. It would also follow that the Instrument of Tenancy is not subject to the consent of the Director.

[27] The end result is therefore, this Court has no jurisdiction to entertain this application. The Plaintiffs must pursue their application under the provisions of the ALTA and not the LTA. It is implicit in this Judgment that the landlord in the Instrument of Tenancy is the Plaintiffs and not the Director of Lands.

COSTS

[28] The Plaintiffs have lost so they should pay the Defendant’s costs of this action. There have been several Court appearances, several affidavits filed and lengthy argument and submissions. I think costs of $1,000 is justified.

ORDERS

[29] The Orders are therefore as follows:

1. The Plaintiffs’ Summons for Ejectment filed on 20 June 2008 is dismissed for want of jurisdiction.

2. The Plaintiffs are to pay the Defendant’s costs of $1,000 within 21 days.

Sosefo Inoke
Judge