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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION
HBC Action No.: 37 of 2013
BETWEEN:
MAHA DEO of Bocalevu, Labasa, Cultivator
PLANTIFF
AND:
AMRIT PRASAD of Bocalevu, Labasa, Labourer
DEFENDANT
BEFORE : Justice Deepthi Amaratunga
COUNSEL : Mr. Suhil Chand Sharma for the Plaintiff
Mr. Kohli for the Defendant
Date of Hearing : 4 March, 2014
Date of Decision : 30th April, 2014
JUDGMENT
INTRODUCTION
1. The Defendant had filed ex-parte notice of motion seeking an injunction and it was heard ex-parte and an order restraining the
Plaintiff from disposing or dealing of the property in issue was granted by a judge until determination of the interim injunction
and the Plaintiff filed the affidavit in opposition and for logistical reasons the matter was listed for hearing before me. Both
parties preferred written submissions at the hearing and the time was granted for that and both parties have filed the same.
FACTS
2. The Plaintiff and the Defendant are father and son, respectively and the land in issue is an agricultural land and it was leased
to the Plaintiff for a period of 37 years, by the landlord, the Native Land Trust Board (the predecessor to TLTB) in 2005.
3. The said lease contained following condition inter alia
'(2) The tenant shall plant with crops in a good and husband like manner within the first five years of the lease at least one–fifth of the land suitable for cultivation, at least two–fifth of the said area within the first ten years of the lease, at least three fourths of the said area within the first twenty years of the lease, and at least three fourths of the land suitable for cultivation shall be kept planted as aforesaid for the remainder of the term of the lease.'(emphasis added)(annexed 'c' to the affidavit in opposition)
4. Admittedly, the Defendant has been engaged in the sheep farming on a part of the said land for last 10years. He also alleges that he had cultivated the land and had proceeded with a claim in the Agricultural Tribunal over the said claim and state that apart from sheep farming he had cultivated the land since the plaintiff got sick and was unable to cultivate it.
5. The Plaintiff in this action, is seeking eviction of the Defendant from the land, and the damages and the Defendant in his counter claim had sought inter alia for 2/3 of the proceeds of the sugar cane proceeds and general and special damages for alleged loss due to actions of the Plaintiff.
6. The Defendant has been restrained by a Magistrate's Court order under Domestic Violence Decree, from entering a perimeter of 100 meters from the property in issue, and the sheep farming of the Defendant is now managed by engaging a third party.(See paragraph 7 of the affidavit in support).
7. The Defendant, by way of ex parte motion filed 30th January, 2014, supported by an affidavit, without annexing any documents to the affidavit in support, sought an interim injunction against the Defendant from restraining disposing or dealing with the land in issue.
8. The Plaintiff states that he had already indicated his concern to transfer the instrument of tenancy of the said land to his daughter, as there is much love lost between the Plaintiff and the Defendant for alleged actions of the Defendant towards the parents.
ANALYSIS
9. The land in issue is subject to an agricultural lease in terms of Agricultural Landlord and Tenant Act. It was leased to the Plaintiff in 2005 for 37 years. According to the Defendant, apart from the sheep farming for more than 10 years,
he had cultivated the land in issue with sugar cane. In the affidavit in opposition the annexed 'A' letter addressed to the Defendant
by a Bank state inter alia states as follows
'Furthermore, The Bank has been pleased to have been partnering with you till to date with your sheep farming venture and notes that your sheep farming has been identified as breeder farm via MPI as well'
10. This is a letter from Fiji Development Bank, and relates to refusal of a further loan for sheep farming on the land in issue. Admittedly, the Defendant is not managing the said sheep farming and that is due to a restraining order in terms of the Domestic Violence Decree. Neither party had produced that order but it is admitted that he was restrained from entering an area within 100 m of the land in dispute.
11. The land relating to dispute is a lease granted by the TLTB (successor to NLTB) and it was granted to the Plaintiff. This land is admittedly an agricultural land that is governed by the Agricultural Land and Tenant Act and the tenancy under the lease was granted to the Plaintiff. The allegation of the Defendant is that he had cultivated the land since his father was sick. This dispute was referred to the Agricultural Tribunal and there is no final determination by the said tribunal. In the said matter before the Agricultural Tribunal the landlord, TLTB was also made a party other than the Plaintiff and the Defendant. Again neither party had submitted any evidence as to the nature of the dispute before the Agricultural Tribunal and or the state of the proceedings before the said Tribunal. The Defendant states that he sought tenancy for a part of land in the tribunal.
12. Section 6 of the Agricultural Land and Tenant Act states as follows
'6. Notwithstanding the provisions of any Act or agreement to the contrary but subject to the other provisions of this Act-
(a) any contract of tenancy created after the commencement of this Act but before the commencement of the Agricultural Landlord and Tenant (Amendment) Act, 1976* shall be deemed to be a contract of tenancy for a term of not less than 10 years;*1st September, 1977.
(b) any contract of tenancy created after the commencement of the Agricultural Landlord and Tenant (Amendment) Act, 1976* shall be deemed to be a contract of tenancy for a term of not less than 30 years;
*1st September, 1977.
and the provisions of this Act shall apply to any such contract.
(Substituted by 35 of 1976, s. 4.)(emphasis is mine)
13. The provisions of the said Act, will apply to the tenancy of the Plaintiff and landlord with regard to the allegations of the Defendant for alleged cultivation of the land leased to the Plaintiff. There is no allegation that there will be a hindrance to this process if interim injunction is refused.
14. The Defendant in his counterclaim seeking 2/3 of the proceeds of the sugar cane proceeds from year 2008 to 2013. He is claiming for general damages for pain and suffering for alleged actions of the Plaintiff. There is no permanent restraining injunction sought by the Plaintiff either in the writ of summons or in the ex-parte notice of motion.
15. The counter claim of the Defendant relates to a monetary claim. The landlord is not a party to this action, so in any event the landlord can transfer the property to third party irrespective of the consent of the Plaintiff who is only a tenant under the instrument of tenancy in terms of the Agricultural Landlord and Tenant Act. The landlord and the Plaintiff (tenant) are governed primarily by the said Act as well as the written agreement between them. The Defendant only seeks to restrain Plaintiff (tenant) from dealing with the property.
16. Neither the motion seeking injunctive relief nor the Affidavit in support of the motion filed by the Defendant seeks a permanent injunction. His final relief is for 2/3 of the sugar cane proceeds from 2008 to 2013 and for damages. He cannot claim for sugar cane proceeds beyond this period as he is prevented from even entering an area of 100 m from the outer boundary of the land in issue, till the restraining order is operative.
17. In the affidavit in support of the motion Defendant states that Plaintiff is going to sell the land and money will be given to the sister of the Defendant and parents will be made beggars on the street. Again in the same affidavit Defendant state after the transfer of land Plaintiff will migrate to New Zealand and will be difficult to enforce any judgment against the Plaintiff. Both contentions are denied in the affidavit in opposition but Plaintiff admitted that he desired the land to be transferred to his daughter.
18. The Defendant had cited Rampathi v Raj Kamal etal, (33 FLR 165). But the facts of that case are entirely different. Unlike in the said case, the Defendant is not residing on the premises in issue. Already the Defendant is restricted from entering even 100 m from the land in question. In the circumstances facts are clearly distinguishable. In any event the ratio of the said case cannot apply to obtain interim injunction in the present case, as no injunction was granted in that case.
19. The Defendant's claim is based on disputed facts as to his alleged development/cultivation of land leased to Plaintiff. There is serious question to be tried. The alleged claim for sugar cane proceeds for the said time period, but there is no claim on the land he seeks to prevent transferring. There is no permanent injunction sought by the Defendant regarding said land.
20. The injunction is sought on the basis that either that Plaintiff would be made a destitute after the alleged transfer of rights to Defendant's sister or on the basis of lack of property to recover from the Plaintiff if the counter claim is granted in his favour.
21. It is clear that Defendant cannot obtain an injunction to prevent transfer of property for his apprehension that Plaintiff would
become a beggar, after the transfer of the property.
22. The Defendant is also seeking an injunction on the basis that he would not be able to recover money if judgment is given in his
favour after the transfer of the said property. The Plaintiff's interest in the said property is only leasehold right for remaining
period under the contract of tenancy between Plaintiff and landlord. The land is a native land.
23. In Ram Pati (Supra) case there is no issue of injunction being sought on the basis of parties not having sufficient means to satisfy the judgment. So, the said case cannot be applied for present application.
24. In Charter Bank v. Daklouche and Another 1980 All E R 205 at 210 Lord Denning MR held that
'The law should be that there is jurisdiction to grant a Mareva injunction, even though defendant may be served here. If he makes a fleeting visit, or if there is a danger that he may abscond or that assets or moneys may disappear and be taken out of reach, of the creditors, a Mareva injunction can be granted....'
25. The injunction sought by the Defendant restraining the Plaintiff from transferring the property is based on his apprehension that Plaintiff would become a destitute after the said transfer. Defendant is not seeking a permanent order regarding the land either in ex- parte motion or in the writ of summons. Hence, when he failed to establish the grounds for a Mareva injunction then it should not be allowed. On the affidavits before me the Defendant has not established grounds stated by Lord Denning MR quoted above to restrain the transfer of the property by the Plaintiff, as a security for his counter claim.
CONCLUSION
26. There is no permanent injunction sought either in the Ex parte or affidavit in support of the said motion. The relief he is seeking
against the Plaintiff is 2/3 of the proceeds of the income from sugar cane and for damages. The injunction to restrain transfer of
property is made in the nature of Mareva injunction and Defendant had not established grounds for such injunction. In the affidavit
in support Defendant has not alleged any hindrance to his claim before Agricultural Tribunal, due to alleged transfer of property.
In the circumstances the application for interim injunction cannot stand and the motion needs to be struck off. Even if I am wrong,
on the balance of convenience lies with the Plaintiff. He is old and should not be prevented from exercising his rights as the tenant.
The Defendant is already restrained from entering the land by order of a court. His sheep farm is maintained by another person so
there will be no inconvenience to Defendant by transfer of the land. He has not alleged any difficulty in sheep farming due to transfer
of land, too. The cost of this application is summarily assessed at $750.
FINAL ORDERS
Dated at Suva this 30th day of April 2014.
Justice Deepthi Amaratunga
High Court, Suva
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