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Sharma v Sharma [2012] FJHC 1398; HBA23.11 (23 October 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Nausori Magistrate's Court No: 106/2009
Suva Civil Appeal No: HBA 23/2011

BETWEEN :

PRAVIN CHAND SHARMA
1st Appellant/Defendant

AND:

JAGDISH CHAND SHARMA
2nd Appellant/Defendant

AND:

HEMENDRA KUMAR SHARMA
Respondent/Plaintiff]

Counsel : Mr. A. Rayawa for the Appellants/Defendants
Mr. S. Kumar for the Respondent/Plaintiff

Date of Judgment: 23rd October, 2012

JUDGMENT

[1]. This is an appeal from the ruling delivered by the learned Magistrate Mr. Mosese Naivalu on 18.2.2012 at the Nausori Magistrate's Court.

[2]. The grounds of appeal set out by the appellants (hereinafter referred to as the defendants) are as follows:

1. The learned Magistrate erred in law in categorising the appellants as an interested party with no locus standi as stipulated under section 48 of the Agricultural Landlord and Tenants Act Cap 270.
   
2. The learned Magistrate erred in law in misconstruing the application of section 48 of the Agricultural Landlord and Tenants Act Cap 270.
   

100. The learned Magistrate erred in law in presiding over a matter of trespass to land and for the recovery of land between the appellant and the Director of Lands who previously had a tenancy agreement, therefore falling outside of the jurisdiction stipulated in the Magistrate Court (Civil Jurisdiction) Decree 1988.
     

4. The learned Magistrate erred in law in failing to consider relevant factors but took into account irrelevant considerations from a cursory examination of the facts stipulated in the Agricultural Tribunal ruling which deprived the appellant's of the right to be heard.
   

Chronology of events

[3]. On 15.01.2011 the plaintiff filed inter-partes Notice of Motion seeking following orders:

1. The defendants whether by themselves or their servants and/or agents be injuncted and restrained from occupying or damaging any property and/or removing any items whether building or otherwise situated and/or contained Lot 1 R1960 Koroqaqa and contained in LD 4/14/1490 CL 9707 having an area of 10 acres; and,
   
2. The defendants be ordered to pay a sum of $24,000.00 as security for costs.
   

[4]. When the Notice of Motion was called on 15.1.2011, neither the defendants nor their counsel appeared before the Magistrate and the learned Magistrate granted the order in terms of the summons restraining the defendants from occupying or damaging any property.

[5]. The learned Magistrate also ordered the defendants to pay a sum of $24,000.00 as security for costs.

[6]. Having been aggrieved by the Magistrate's order, the defendants filed inter-partes motion dated 26.1. 2011 seeking following orders:

1. That the injunctive orders made by the learned Magistrate on 21.01.2011 be wholly set aside.
   
2. That orders made for payment of security for costs be set aside or alternatively stayed.
   
3. Alternatively, that the injunctive orders abovementioned be stayed pending the completion of a corresponding Agricultural Tribunal Appeal matter.
   
4. That the defendants' proprietary interests and value be determined before any injunctive orders are sought by the plaintiff.
   
5. That costs be costs in the cause.
   

[7]. Having heard the defendants' motion, the learned Magistrate delivered his ruling dismissing the defendant's motion with costs to the respondent. It is against that ruling the defendants have made this appeal.

[8]. Let me deal with the defendants' 1st ground of appeal i.e whether the appellant could be categorised as an interested party with no locus standi as stipulated under Section 48 of the Agricultural Landlord and Tenants Act Cap 270.

[9]. The defendants submitted that Section 28 of the Agricultural Landlord and Tenants Act (ALTA) determines the locus standi for representation in the tribunal and it includes an interested party.

Section 28 of ALTA reads:

1. The landlord, the tenant or any other interested party may be represented before a tribunal by a barrister and solicitor.
   
2. The landlord may be represented before a tribunal by his agent.
   

[10]. The provisions relating to appeals from tribunals are contained in section 48 of the ALTA.

Section 48(1) reads:

1. Where a landlord or a tenant is aggrieved by an award, order or certificate of a tribunal made or issued under the provisions of this Act the landlord or tenant may appeal against such award, order or certificate to a central agricultural tribunal.
   

[11]. In light of section 28 and section 48 it is obvious that although under section 28 an interested party can be represented before a tribunal by a barrister and solicitor, section 48 has given rights to appeal the tribunal decision to only landlord and tenants.

[12]. As can be seen from learned Magistrate's ruling, the learned Magistrate has correctly addressed the above issue and confirmed that the applicant (defendant) does not have any locus standi in the instant matter.

[13]. Therefore, I conclude that the first two grounds of appeal advanced by the defendants are devoid of merit and fail.

[14]. On their 3rd ground of appeal, the defendant submitted that the learned Magistrate erred in law in presiding over matters of trespassing to land and for the recovery of land between the appellant and the Director of Lands who previously had a tenancy agreement, therefore falling outside of the jurisdiction stipulated in the Magistrates Court (civil jurisdiction) Decree 1988.

[15]. The defendants rely on section 2 proviso of the above decree which states:

"Provided that a Magistrate's Court shall not exercise jurisdiction.

1. In suits wherein the title to any right, duty or office in question..."
   

[16]. The defendants submitted that the ruling delivered by the ALTA was subjected to an appeal to the Central Agricultural Tribunal on the determination of rights to occupation and tenancy and also to proprietary and equitable rights to the property and when the injunctive orders were issued, it complicated the issues and its effect is that it permanently re-arranged the rights of the parties in the proceedings pending in the Agricultural Tribunal.

[17]. It was further submitted that the injunctive orders issued by the Magistrates have permanently deprived the appellants the advantage that the appellants had when the matter proceeded on appeal in the Central Agricultural Tribunal.

[18]. In support of the above argument the defendants placed much reliance on the case of Reddy –v- Samy [1982] 28 FLR 69 which stated as follows:

"Accordingly, for the reasons we have given we are firmly of the opinion that the learned judge should have refrained from making an order for possession and stayed the proceedings pending the outcome of the application before the Tribunal.

In reaching this conclusion we do not in any way attempt to determine any of the matters which are solely within the powers of an exclusive to the Tribunal. Our function on this appeal is purely to determine whether the orders made should stand.

For the reasons given this appeal is allowed; the order for possession made in the Supreme Court stand adjourned pending a final determination in accordance with the provision of ALTA of appellant's present application."

[19]. The above decision relates to an application which was made while there was an application pending before a tribunal.

[20]. In the present case the defendants submitted that an appeal was pending in the Agricultural Tribunal as per page 52 of the Magistrate Court Records and therefore on that basis this appeal should be allowed. The Agricultural Tribunal has delivered its decision on 24.11.2010.

[21]. It must be noted that page 52 of the Magistrate Court Records contains an inter-partes Notice of Motion filed by the defendants in the Agricultural Tribunal seeking leave to file their appeal against the decision of the Agricultural Tribunal out of time and also seeking a stay of execution on the ruling delivered on 11.24.2010 by Tribunal.

[22]. Merely because an inter-partes notice of motion seeking leave to file an appeal against the decision of the Agricultural Tribunal has been filed that does not mean an appeal is pending before the tribunal.

[23]. The defendants have failed to furnish any document to show that there exists an appeal in the tribunal.

[24]. The application filed by the defendants in the Agricultural Tribunal for leave to appeal out of time was heard by the tribunal and a ruling was delivered on 6.6.2011 dismissing the application with an order for cost in the sum of $1,500.00.

[25]. The above facts clearly show that when the learned Magistrate granted the injunction and order for security for costs no action was pending before the tribunal thus facts of Reddy-v-Samy (supra) can easily be distinguished from the present action and it has no applicability. Therefore, the appellants' third ground of appeal also fails.

[26]. The fourth and final ground of appeal set out by the defendant is that the learned Magistrate erred in law in failing to consider relevant factors but took into account irrelevant considerations from cursory examinations of the facts stipulated in the Agricultural Tribunal Ruling which had deprived the appellants' right to be heard.

[27]. It could be observed in the decision of the Agricultural Tribunal dated 24.11.2010 as well as in Tribunal's ruling dated 6.6.2011 the defendants were represented by their solicitors.

[28]. Further, in deciding the defendants application for a stay the learned magistrate has fairly and squarely analyzed the legal principles governing the granting of stay orders and was of the view that the grounds advanced by the defendants were devoid of merit. Although the defendants submitted that they were deprived of right to be heard the opportunity afforded to the defendant by the Magistrate Court is pervasive in the Magistrate Court Record. Therefore, I am not inclined to accept the defendants above argument.

[29]. In this matter the defendants paid no heed to the ruling of the Tribunal and the affidavit filed by the plaintiff in support of the injunction application amply demonstrated that the defendants were damaging the plaintiff's property. Therefore, when the injunctive relief granted by the Magistrate is considered it is apparent that it intends to preserve the property. It further shows that learned Magistrate has taken all relevant facts into account and made his ruling.

[30]. Upon consideration of the above, it is my considered view that the grounds of appeal advanced by the defendant are devoid of merits and hence, cannot be accepted.

[31]. On the above premise, I dismiss the appeal.

[32]. Costs shall be in the cause.

Pradeep Hettiarachchi
JUDGE