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Director of Lands, Ex parte Peter Madden [2016] FJHC 736; Judicial Review 003.2015 (16 August 2016)

THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. 003/2015

BETWEEN:

DIRECTOR OF LANDS

RESPONDENT

EX-PARTE PETER MADDEN

APPLICANT

AND

JAMES KELLY

INTERESTED PARTY

COUNSEL : Mr K. Vuataki for the applicant

Ms T. Sharma with Ms S. Taukei for the respondent

Mr Ronal Singh for the interested party

Date of hearing: 8 June,2015

Date of Judgment: 16th August,2016


R U L I N G

  1. This is an application for leave to apply for judicial review. The applicants seeks judicial review of a decision of the respondent of 23rd June,2014, cancelling his Tenancy at Will,(TAW) on the ground that he had illegally subleased his tenancy to the interested party. The applicant seeks a declaration that the decision was in breach of his legitimate expectation to be heard before his tenancy was cancelled and a writ of certiorari “to set aside the notice of termination”.
  2. The applicant, in his affidavit in support states that on 12th September,2007, the respondent granted him TAW46077 over a land besides the Taveuni Coast Road Reserve. The interested party, who desired to enter into a joint venture with the applicant, had forged his signature on a sub-lease agreement of 27th April,2008. The interested party then operated a dive shop on the land without the applicant. The applicant took 51 % shareholding and the interested party took 49%. The interested party started foreshore development without the applicant. He was given a deportation order by the Immigration dept for unauthorized foreshore development, as foreshore approval had been given to the applicant. In November,2013, the applicant declined the interested party’s request to surrender his tenancy to him. The applicant filed proceedings for eviction of the interested party. He withdrew proceedings, as the respondent terminated the applicant’s tenancy on 23rd January,2014.
  3. The respondent, in his notice of opposition states firstly, that the application has been substantially delayed by the applicant for “no reasonable reason”. The decision of the Director of Lands was made on 23rd January,2014. This application was filed on 2nd March,2015. Secondly, the TAW was cancelled, as the applicant had clearly breached the terms and conditions of the TAW, in knowingly sub-leasing the tenancy to the interested party. The land was not transferable. The application is an abuse of the process of Court. There is no arguable case.
  4. The interested party in his affidavit in reply denies that the agreement of 27th April,2008, was obtained by fraud and that the applicant’s signature is a forgery. The applicant did not allege fraud in the eviction proceedings. In his affidavit in the eviction proceedings, the applicant states that “on 27th April,2008, he entered into a sub-lease agreement with (him) on the consensus that a dive shop..would be built on the land”.
  5. The respondent, in her affidavit in response reiterates that the TAW was cancelled, as its conditions were breached. The TAW was a contract between the Director of Lands and the applicant.

The determination

  1. I am satisfied that the applicant meets the requirement of sufficient interest to bring this application.
  2. I proceed to consider the issue of substantial delay. The impugned decision was made on 23rd January,2014. This application was filed on 2nd March,2015.
  3. Or 53, r4 (1) provides that the Court may refuse to grant leave where there has been undue delay in making an application “ if in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration”.
  4. In Maisamoa v Chief Executive for Health & Ors, [2008] FJCA 41; ABU 0080 of 2007S the FCA held at para 18:

One of the principal features of judicial review as a remedy is that it must be instituted promptly. Indeed Order 53 Rule 4 makes that plain from the language of the rule which requires that applications for leave must be made promptly and in any event within three months from the date when the ground for the application first arose.

  1. The FCA said that the court may nevertheless, extend time if the applicant shows there is good reason for the delay, as for example, if time was taken to obtain legal aid to conduct the judicial review,if an important point of law was at stake or alternative remedies were pursued. The Court added:

One obvious additional category that might be considered is where the injustice to an Applicant was obvious and egregious and where justice would not be done if the court shut out the Applicant notwithstanding some delay. Plainly, as the Appellant contended, the court would have to consider all of the relevant facts before coming to a decision on this matter.


  1. In Public Service Commission v Singh, [2008] FJCA 64; ABU005.2007S the FCA declared:

Accordingly the position in Fiji as in England and as was stated in Maisamoa namely that judicial review proceedings, including proceedings for leave, must be issued without undue delay and in any event within the time limited by the Rules.


  1. Returning to the present case, the applicant in his affidavit in support states the reasons for his delay are as follows:
  2. Taraivina Ranadi Biu, a law clerk of Vuataki Law, in a supplementary affidavit states that the application was filed out of time for the following reasons, viz.

That the firm of Vuataki Law was retained to draft the application for leave.

That the application for leave was drafted by our office.

That the pleadings were then sent to Vakaloloma & Associates in Suva for filing and for attendance to hearing.

That on enquiring in February, 2015 as to whether the pleadings had been filed that we found out that it was not filed as Mr Vakaloloma was overseas and assigned Counsel was of the opinion that the application for leave should contain the words “To: The Judge” and he had crossed out the words “To” The (Respondent) and (Interested Party).” Attached marked “A” is a true copy.

That on his return from overseas Mr Vakaloloma brought the documents back to our office for re-drafting on the 16th day of February, 2015.

That on checking Form 32 we saw that it contains the words “To (name of Defendant/Respondent)” and sent it back to Vakaloloma and Associates for re-filing.


  1. The applicant’s solicitors had sent an appeal to the Permanent Secretary for Lands and Mineral Resources on 20th March,2014. The respondent replied five and a half months later on 1st September,2014, advising him to seek legal redress.
  2. Since 1st September,2014, there has been a delay of six months in filing this application. The subsequent delay is attributed to his solicitors: Lagilevu Law, Vuataki Law and Vakaloloma & Associates.
  3. In my view, the reasons given in the two affidavits for the delay of six months are implausible and unacceptable.
  4. In Harikisun Ltd v Singh, [1996] FJCA 15; ABU0019.1995S the FCA stated :

It is clear that the application was filed after the relevant time of three months had expired, even from that later date, but that in itself does not require leave to be refused. It is a ground on which the judge may exercise his discretion and refuse leave but he was not obliged to do so. We turn, therefore, to consider whether the delay was undue in terms of rule which requires one to consider whether the reasons for it were such as to make it reasonable and justifiable.(emphasis added)


  1. In the exercise of my discretion, I decline the application for leave on the ground that the delay is unjustifiable.
  2. Orders

A.L.B. Brito-Mutunayagam

JUDGE

16th August, 2016


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