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Kumar v Koroi [2021] FJHC 132; HBA03.2019 (24 February 2021)

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLATE JURISDICTION

Appeal Action No. HBA 03 of 2019

BETWEEN:

JAGDISHWAR KUMAR

APPELLANT

AND:

PITA KOROI

RESPONDENT

BEFORE:
M. Javed Mansoor, J

COUNSEL:
Mr. S. Sharma for the Appellant
Mr. J. Korotini for the Respondent

Date of Hearing:
22 August 2019

Date of Judgment:
24 February 2021

JUDGMENT

APPEAL: Specific performance – Burden of proof – Share farming – Whether share farming

amounts to dealing with land – Whether consent of iTaukei Land Trust Board necessary for share farming – Findings of Magistrate Court not to be disturbed lightly – Section12 (1), iTaukei Land Trust Act 1940

The following cases are referred to in this judgment:
a. Manadan v Kulamma [1965] FJLawRp 25; [1965] 11 FLR 141 (16 July 1965)
b. Genda Singh v Balak Ram [1963] FJLawRp 30; [1963] 9 FLR 163 (12 December1963)

1. This appeal is against the judgment of the Magistrate Court of Labasa dated 6 March 2019, which dismissed the appellant’s action seeking specific performance to execute a transfer of ownership of a tractor in favour of the appellant. The parties agreed to purchase a tractor following a farming arrangement between the appellant and the respondent. The arrangement was for the appellant to cultivate sugar cane on land leased by the respondent from the iTaukei Land Trust Board and for proceeds from the sale of produce to be shared.
   
2. The appeal is grounded on the basis that the magistrate erred in holding that share farming amounted to a dealing with land in terms of section 12 of the iTaukei Land Trust Act 1940 and in the determination that the share farming agreement between the appellant and the respondent was unlawful in the absence of the iTaukei Land Trust Board’s consent. Two further grounds were that the magistrate erred in holding that there was no verbal agreement between the parties to purchase a tractor, and in concluding that the appellant could not claim specific performance as there was no written agreement.
   
3. The respondent filed a response to the grounds of appeal dated 9 April 2019 and annexed supporting documents (a) to (h). The record does not disclose any of these documents to have been produced as evidence before the magistrate. The leave of court not having been taken to tender these documents in appeal, they did not receive the court’s consideration in these proceedings.
   
4. The appellant initiated action in the Magistrate Court against the respondent by writ of summons dated 15 December 2015. The substance of the appellant’s statement of claim is this. A share farming agreement was entered into between him and the respondent around January 2004, following which a tractor bearing registration number E-0960 was purchased on his behalf in March 2010 for a sum of $17,000.00. He paid a deposit of $3,000.00 against the price. The balance was settled by a loan taken by the respondent. The appellant pleaded that he has been in possession of the tractor since 2010, and that he cultivated the respondent’s farm from 2004 until 2014. He claimed to hold a power of attorney from the respondent. He expressed willingness to return the tractor to the respondent on payment of $27,000.00.
   
5. The respondent in its statement of defence denied that there was a share farming agreement between the parties. He pleaded that the appellant was engaged as a labourer to work and manage his farm as well as to drive the tractor. The respondent conceded that the appellant paid the mentioned deposit but claimed that he had taken a loan from the Sugar Cane Growers Fund and that this was settled by him without the assistance of the appellant. He asserted that the tractor had remained registered in his name, and called for its return.
   
6. At the hearing, the appellant admitted that the share farming agreement was not in writing. He stated that the loan taken by the respondent for the purchase of the tractor was to be settled through sales proceeds from sugar cane produce out of the respondent’s land. The mode of settlement was to remit 50% of the sales proceeds (it is unclear whether this refers to net proceeds, but the matter has no material bearing in this case) to the Sugar Cane Growers Fund. This was not in dispute. The parties were, however, at variance regarding the fate of the balance 50% of the proceeds. According to the appellant, the entirety of the balance sales proceeds was taken by the respondent, and the appellant was left with the burden of settling the loan on his own.
   
7. The appellant claimed that after taking over the tractor he had spent an estimated $10,000.00 to repair and maintain it over the years. Mr. Chandra Deo, a witness summoned by the appellant, gave evidence confirming that he repaired the tractor brought to him by the appellant. It is understandable that if the tractor was in the appellant’s possession and used by him, it would have been repaired and maintained in workable condition by the user; in this case, the appellant.
   
8. The respondent claimed that the balance proceeds, after deduction of the loan payment, were equally shared between them and that the loan was settled entirely by him. Though having denied in his statement of defence that there was a share farming agreement, the respondent conceded at the trial that such an arrangement was in place. He admitted appointing the appellant as his attorney, but said that he revoked the power of attorney in 2014 after the appellant tried to channel sugar cane sale proceeds to his account. The appointing instrument was not before court.
   
9. The respondent said that though he had asked for the return of the tractor the appellant had failed to hand over possession. Moreover, the appellant had objected to its sale, he said, when he tried to dispose the tractor, and as a result he was compelled to sell one of his lands in order to settle the loan. When the appellant refused to hand over the tractor, the respondent said that he complained to the police.
   
10. It is common ground that a tractor was purchased and registered in the name of the respondent; that the appellant paid a deposit of $3,000 and was in possession of the tractor from the time of its purchase. The evidence evinces that there was a share farming arrangement between the parties. Neither party produced documentary evidence other than a third party insurance policy tendered by the appellant which is of no assistance to his claim; reference will be made to this document in a later paragraph. Although a share farming arrangement between the parties seems to have been in place, the details are not before court. Except for the appellant’s testimony, there is no other evidence that the tractor was purchased on the appellant’s behalf.
    
11. After hearing, the magistrate concluded that the appellant’s case was not supported by evidence. He accepted the respondent’s evidence that there was no agreement between the parties to purchase the tractor on behalf of the appellant. He made the finding that the loan taken to purchase the tractor was paid from proceeds of produce from the respondent’s land. He dismissed the action with costs and ordered the appellant to hand over the tractor to the respondent within seven days of his judgment.
    
12. The main issue in this case is whether at the hearing before the magistrate the appellant established ownership to the tractor notwithstanding its registration in the respondent’s name. The burden was on the appellant to establish ownership with affirmative evidence. The appellant’s payment of the deposit, possession of the tractor throughout after its purchase, and him taking responsibility for its repair and maintenance are material facts. But, they are not sufficient in this case, on a balance of probability, to displace the ownership officially recognised by registration of the vehicle in the respondent’s name.
    
13. The magistrate, it would seem, reached his findings on the basis of the available evidence. Those findings do not appear to be contrary to the evidence on record concerning ownership of the tractor. He had the advantage of seeing and hearing the witnesses, and a court sitting in appeal will not lightly disturb findings of fact unless it clearly appears that the findings of the magistrate are unsupported by evidence or that inferences reached are not based upon properly founded facts or that irrelevant considerations have been taken into account in making those findings. The magistrate has applied his mind to the main issue between the parties and answered it on the basis of the evidence before court. There are no reasons, in my view, to disturb the findings of the magistrate in regard to the ownership of the tractor.
    
14. The first and second grounds of appeal relate to the magistrate’s finding that the share farming agreement was null and void in the absence of consent to the agreement by the iTaukei Land Trust Board in terms of section 12 of the iTaukei Land Trust Act. That finding, however, is not central to the main issue, which is the dispute relating to the ownership of the tractor. However, as these grounds have been urged by the appellant, a brief consideration of the statutory provision would suffice to deal with them. A deeper examination of this vexed question can be dispensed with in the circumstances of this case.
    
15. The relevant portion of section 12 (1) of the iTaukei Land Trust Act states:

“Except as may be otherwise provided by regulations made hereunder, it shall not be lawful for any lessee under this Act to alienate or deal with the land comprised in his or her lease or any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever without the consent of the Board as lessor or head lessor first had and obtained. The granting or withholdi g of consent shall be in the absolute discretion of the Board, and any sale, transfer, sublease or other unlawful alienation or dealing effected without such consent shall be null and void, provided that nothing in this section.......”

16. In Manadan v Kulamma^[1], a case relied upon by the appellant, the Fiji Court of Appeal considered the effect of section 12 of the iTaukei Land Trust Act in relation to a share farming agreement. In that case the share farming agreement was available and the court was in a position to construe the contractual provisions. The Court of Appeal observed,
    

“There is little guidance to be had on the appropriate meaning to be attached to the phrase “deal with” the land in the context of this Ordnance. To my mind the word “with” implies that the land or part of it or an interest in it at least, must be the subject-matter of the dealing. That not mean that a purpopurpoy innocuous agreement concealing a far-reaching de factor ator arrangement would escape, as the illegal dealing would be the de factosaction. I think it cannot have then the intention ofon of the Ordinance to render illegal the bringing onto a cane farm of an employee or an independent contractor to farm it in consideration of a share of the proceeds”.

17. In Genda Singh v Balak Ram^[2], the then Supreme Court of Fiji, exercising its appellate jurisdiction, examined section 12 (1) of the Native Land Trust Ordinance in relation to a share farming agreement. Quoting with approval the magistrate’s words that “share farming” is not a term of art, it was held that it is “necessary for a court to decide upon the facts of each particular case whether the agreement in question offends section 12 (1) of the ordinance, Cap. 104, or not”.
    
18. It is clear, therefore, that the question whether a share farming agreement requires the consent of the iTaukei Land Trust Board by reason of a dealing with land must be decided by reference to the terms of such share farming agreement. In this case, there was no written agreement, and the terms of the oral agreement were not clearly placed before the magistrate. The facts that were before court in relation to the share farming arrangement between the parties do not suggest that the respondent dealt with land in entering into a transaction with the appellant. The magistrate’s finding that the share farming agreement was null and void was not warranted. In reaching that conclusion, the magistrate appears to have formed the view that the parties did “deal with the land” without the consent of the iTaukei Land Trust Board. His conclusion that the share farming agreement was null and void is irrelevant to the main issue before court.
    
19. Although I agree with the appellant’s first and second grounds that the magistrate erred in his findings, they are incidental to the material contention between the parties, which is the ownership of the tractor. The third ground of appeal is that the magistrate erred in holding that there was no verbal agreement to purchase the tractor on behalf of the appellant. The facts, as found by the magistrate, do not establish any agreement between the parties to purchase a tractor to be owned by the appellant. This ground cannot succeed. The final ground of appeal is that the magistrate had wrongly concluded that specific performance was not available in the absence of a written agreement. The preceding paragraphs make it clear that the appellant is not entitled to specific performance in the absence of evidence to prove his claim. For these reasons, notwithstanding the court concurring with the appellant in regard to the first and second grounds, the appeal, overall, must fail, as the crucial questions in the action below were rightly decided against the appellant. The respondent is entitled to possession of the tractor, but must return to the appellant the sum of $3,000 paid by him at the time of purchasing the tractor.
    
20. There is another matter that needs comment. In his statement of claim, the appellant seeks specific performance to execute transfer papers of the tractor bearing registration number E-0960. In evidence, the appellant made reference to a tractor bearing registration number A770, which both parties agreed was registered in the name of the respondent. The sole document produced by the appellant, a third party insurance policy in the name of the respondent for the period 15 July 2013 to 15 July 2014, is in respect of a motor vehicle bearing registration number E-0960. The magistrate in his judgment pointed out that no evidence was led in regard to the vehicle bearing registration number E-0960. The response to the grounds of appeal by the respondent explains that E-0960 is the registration number of the tractor’s trailer. The court cannot make an observation on this assertion. What can be said on this matter is that the appellant’s prayer for specific performance is not supported by his evidence even in relation to the tractor’s registration number.
    

ORDER:

1. The appellant’s appeal is dismissed.
   
2. The judgment of the Magistrate Court of Labasa dated 6 March 2019 is affirmed subject to the variation below.
   

100. The appellant is directed to return to the respondent the tractor bearing registration number AA770 within 7 days of this judgment.
     

4. The respondent is directed to pay the appellant $ 3,000 at the time of taking possession of the subject tractor.
   
5. The appellant is directed to pay the respondent $1,000 as costs summarily assessed relating to proceedings here and in the Magistrate Court.
   

Delivered in Suva on 24^th day of February, 2021.

M. Javed Mansoor, J
Judge.

^[1] [1965] FJLawRp 25; [1965] 11 FLR 141 (16 July 1965)
^[2] [1963] FJLawRp 30; [1963] 9 FLR 163 (12 December1963)