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Singh v Speakman [2003] FJSC 7; CBV0002U.1998S (17 April 2003)

IN THE SUPREME COURT, FIJI ISLANDS
AT SUVA

CIVIL APPEAL NO. CBV0002 OF 1998S
(Fiji Court of Appeal Civil Action No. ABU0040 of 1995)

BETWEEN:

RANJIT SINGH
BASANT KUAR
Appellants
(Original Appellants)

AND:

GORDON WILSON SPEAKMAN
THE REGISTRAR OF TITLES
ATTORNEY GENERAL
Respondents
(Original Respondents)

Coram: Hon. Justice John von Doussa – Judge of Supreme Court
Rt. Hon. Justice Sir Kenneth Keith – Judge of Supreme Court
Hon. Justice Robert French – Judge of Supreme Court

Hearing: Thursday 10th April, 2003, Suva

Counsel: Mr. G.P. Shankar for the Appellants
The first Respondent appeared in Person
Office of the Attorney General for the Second and
Third Respondents

Date of Judgment: Thursday 17th April, 2003, Suva

JUDGMENT OF THE COURT

This matter arises out of a landlord and tenant dispute which started with the purported service of a notice to quit in April 1985. The dispute has been in the Courts ever since.

On 7 December 1976 the first Respondent became the registered proprietor of 13 undivided 25th shares of land known as "Bala" comprising 137 acres and contained in Certificate of Title Volume XI/05 folio 218 (the land). On 15 June 1978 the first Respondent became the registered proprietor of the remaining 12 undivided 25th shares in the land. He acquired the land subject to lease No. 53574 which had previously been registered under the provisions of the Land (Transfer and Registration) Ordinance (Cap 120). The lease was in favour of Bhagat Singh as lessee and was for a period of 99 years from 1 January 1954. The lessee (the deceased) died in 1987 and the Appellants are the executors and trustees of his estate.

Following the service of the notice to quit by the first Respondent, the first Respondent commenced two separate actions to which reference is made below regarding the land, but the deceased, and after his death the Appellants, remained in physical possession of the land.

In 1992 the Appellants commenced the proceedings from which the present appeal arises, namely Civil Action No. 254 of 1992 in which the Appellants sought orders for relief against forfeiture of the lease, a declaration that the re-entry of the lease by the first Respondent was unfair, unreasonable and unlawful; a declaration to that the re-entry and cancellation of the lease on the Certificate of Title was unlawful; and for an order setting aside the re-entry and cancellation of the lease by the Registrar of Titles. As the relief claimed rectification of entries on the Certificate of Title the Registrar of Titles and the Attorney General were added as defendants to the proceedings.

The Registrar of Titles and the Attorney General have agreed to abide the decision of this Court, and they have taken no part in the hearing of this appeal.

In an interlocutory judgment given on 10 May 1994 on preliminary issues in Civil Action No. 254 of 1992 Scott J. in the High Court held, contrary to the Appellants’ submissions;

(i) that the lease was subject to the provisions of the Agricultural Landlord and Tenant Act (Cap 270) (ALTA) as the land was, and always had been, rural and therefore "agricultural land" within the meaning of ALTA;

(ii) that the notice to quit was a valid notice, and that the lease was terminated by the proper service of the notice to quit in accordance with the provisions of ALTA;

(iii) that no right of relief against forfeiture continued to subsist in the Appellants.

In a further decision handed down on 2 December 1994 Scott J. in Civil Action 254 of 1992 considered an application by the Appellants to consolidate that action with two other actions in the High Court namely:

(i) Civil Action No. 854 of 1985 filed by the first Respondent on 18 September 1985 seeking possession of the land. This action has not been pursued by the first Respondent although it is still current.

(ii) Civil Action No. 422 of 1988 filed by the first Respondent on 1 June 1988 in which the first Respondent sought specific performance of an option to purchase the Appellant’s leasehold interest in the land for $25,000.00. The option was dated 4 August 1983 and was exercised by the first Respondent on 18 June 1984. However by a letter dated 2 March 1984 the deceased purported to repudiate the option and refused to be bound by it. This action has not been pursued by the first Respondent although it is still current.

Scott J. refused to consolidate the actions, and then proceeded to deal with the only remaining issue in the case, namely whether the Registrar of Titles had acted lawfully when on 7 and 8 May 1992 he accepted and acted on an application by the first Respondent for cancellation of the lease. The application had been received by the Registrar of Titles on 7 May 1992 and processed the next day. His Lordship held that under s.57 of the Land Transfer Act (Cap 131) (LTA) the cancellation of the lease and the removal of its entry from the Certificate of Title was unlawful as the first Respondent had given insufficient prior notice of his intention to apply to the Registrar of Titles before making the application. Accordingly it was held that the cancellation by the Registrar of Titles was premature, and the lease should be reinstated. A declaration was made accordingly. The first Respondent has not disputed this finding. We have not been informed whether the first Respondent renewed the application after the elapse of an appropriate period of notice. That is not an issue we need to pursue as it is not relevant to the outcome of this appeal.

The Appellants by leave appealed to the Court of Appeal against the judgment and findings of Scott J. The appeal was dismissed. The Court of Appeal:

(i) refused an application by the Appellants to admit fresh evidence intended to establish that the land was "exempted" land and therefore not subject to certain of the provisions of ALTA;

(ii) upheld the finding that the notice to quit was valid, and was properly served;

(iii) held that the lease was terminated by the first Respondent and forfeiture completed by re-entry effected by the issue and service of the proceedings in Civil Action No. 854 of 1985;

(iv) rejected the Appellants’ argument that the issue and service of Civil Action No. 422 of 1988 constituted a waiver by the first Respondent of his rights under the notice to quit; and upheld the finding that the Appellants had no subsisting right of relief against forfeiture.

The grounds of appeal stated in the notice of appeal to this Court directly or indirectly challenge the conclusions of the Court of Appeal on each of these matters.

Before turning to the grounds of appeal we deal with two preliminary matters.

The first Respondent contends that the appeal is incompetent. It was instituted by the Appellants under the Supreme Court Decree 1991 which permitted an appeal as of right to the Supreme Court from a final decision in any civil proceedings where the matter in dispute is of the value of $20,000.00 or upwards or where the appeal involves directly or indirectly a claim to or question respecting property or a right of the value of $20,000.00 or upwards. By notice of motion dated 14 December 1998 the first Respondent applied to a sitting of this Court to have the appeal dismissed on the ground of non-compliance with a requirement to give security for costs, and on the ground that the value of the Appellants’ leasehold interest in the land was less than $20,000.00. The Supreme Court on 4 March 1999, upon receiving an undertaking from the Appellants to prosecute the appeal with all diligence, extended the time for the giving of security for costs and ordered that in the event that security was not given before 5 March 1999 the appeal would stand dismissed. The first Respondent in his written case contends that the Supreme Court did not deal with the second limb of his application. He contends that the valuation evidence placed before the Supreme Court on that occasion is sufficient to establish that the amount in issue does not meet the required threshhold.

It is not clear to us that the Supreme Court did not have regard to the second limb of the first Respondent’s submissions on the notice of motion. In any event, we are satisfied that the value of the leasehold interest is at least $20,000.00. The lease, were it not for the steps taken by the first Respondent to terminate it, would have more than 50 years to run. The valuation put forward by the first Respondent estimates the freehold market value of the land to be $109,800.00. The valuer seeks to value of the leasehold interest by assessing an annual rental value, and then capitalising that rental over ten years arriving at a valuation of $10,200.00. In our opinion that approach grossly undervalues the leasehold interest. We also note that the first Respondent in 1984 agreed to purchase the leasehold for $25,000.00. In our opinion the appeal is competent as of right under the Supreme Court Decree, 1991.

The second preliminary issue is that by notice of motion dated 28 March 2003 the Appellants applied to have this appeal adjourned pending the outcome of an application to an Agricultural Tribunal for relief against forfeiture. For three reasons we ruled against an adjournment. First, the dispute between the parties is nearly eighteen years old, and no steps should be allowed which further protract the dispute. Secondly, there is in place an order of the High Court restraining the Agricultural Tribunal from proceeding with the application that is before it. Thirdly, s.62 (3) of ALTA provides that a tribunal should not entertain any application for adjudication upon any issue which has been decided between the same parties by any court of law. Whilst the decision of the Court of Appeal remains, s.62 (3) would prevent the tribunal from entertaining an application for relief against forfeiture. For the second and third of these reasons, there would be no utility in granting the adjournment sought by the Appellants.

We now turn to the issues raised by the grounds of appeal.

Validity of the notice to quit

Under this heading we deal with the issues raised in grounds 1 to 5 and 8 of the notice of appeal.

The notice to quit given by the first Respondent is in the following terms:

"Denmark House

40 Weghorn Street

Ipswich, Queensland 4305

AUSTRALIA

Mr. Bhagat Singh

P.O. Box 3623

Samabula

Suva

FIJI

22 April 1985

NOTICE TO QUIT

TAKE NOTICE that as lessee of the land known as ‘Bala’ as contained in registered lease number 53574 you are HEREBY given three (3) months notice to Quit the said land on the ground of contravention of the Agricultural Landlord and Tenant Act, namely placement of a first registered mortgage on the said lease without prior approval of the lessors.

However, should the said mortgage be removed from the said lease within the said three months, this Notice shall be deemed cancelled and of no force and effect.

(Signed)

..........................................................

for lessors"

There is no dispute that the deceased without the consent of the first Respondent mortgaged the land to Westpac Banking Corporation.

The Court of Appeal cited with approval the decision of the Court of Appeal in Ram Lochan Regan v Satya Nand Verma [1965] 11 FLR 240 which decided that while no particular form was required to constitute a valid notice to quit, nevertheless it was necessary that the notice be addressed to the right person, properly describe the premises to which it relates, be plain and unequivocal and expire at the proper time. The Appellants contend that Ram Lochan Regan v Satya Nand Verma is distinguishable as that case concerned a "protected lease" governed by the Fair Rents Ordinance, whereas the circumstances of the present case are covered by different legislation. We do not think the case can be distinguished on this basis. The Court of Appeal in Ram Lochan Regan v Satya Nand Verma at 244 adopted well recognised principles regarding notices to quit stated in "Foa on Landlord and Tenant", 7th Ed. at p.598. See also "Woodfall, Landlord and Tenant," Looseleaf Ed. Vol 1, 17.245-17.246. In our opinion the same principles apply in this case. Those general principles are, however, subject to particular statutory provisions that have application in a particular case (and in this respect reference must be made to s.38 of ALTA).

In the present case the notice to quit was addressed to the right person and it correctly described the leasehold premises. However the Appellants challenged the validity of the notice of the following grounds:

(i) the lessor was not named in the notice to quit, and the notice therefore lacked clarity;

(ii) the expiry time was not in accordance with the statutory power under which the lessor sought to terminate the tenancy;

(iii) the lessor purported to rely on a statutory power under ALTA, but the lease was governed by LTA;

(iv) The first Respondent did not have valid title as lessor which permitted him to give a notice to quit;

(v) the notice was invalid as it does not claim compensation.

We take these matters in turn.

We agree entirely with the Court of Appeal that the notice to quit did not lack clarity because the name of the lessor was not stated in the notice. The notice correctly identified the registered lease by number. The Certificate of Title unequivocally identifies the first Respondent as the registered proprietor of the land, and therefore identifies the first Respondent as the lessor. It is not necessary, as the Appellants contend, that for the first Respondent to be identified as the lessor a separate entry be recorded on the Certificate of Title to that effect. It is sufficient that the Certificate of Title records the first Respondent as the registered proprietor. The lessee, on receiving the notice to quit, could have been in no doubt about the identity of the lessor.

We consider that the notice to quit was stated to expire at the proper time. For reasons given later in this judgment, we consider that it is clear that the contract of tenancy constituted by the lease was governed by the provisions of ALTA. The Appellants contend that to be valid the notice to quit should have given only one month’s notice. They rely on s.37 (1) (b) (i) and (ii) of ALTA for this submission. The first Respondent however contends that the proper period was three months as the relevant provision of ALTA under which the notice was given is s.37 (1) (c) (ii).

Section 37(1) of ALTA relevantly reads:

" A landlord may terminate his contract of tenancy and may recover possession of an agricultural holding

.....

(b) by one months' written notice to quit

(i) where the tenant sublets, assigns or subdivides such holding without having previously obtained the consent in writing of the landlord which consent shall not be unreasonably withheld; or

(ii). where the tenant commits a breach of any term or condition of the tenancy which is not capable of being remedied and the interests of the landlord are materially prejudiced thereby;

(c) by three months' written notice to quit

(i) where the tenant is not cultivating or operating such holding according to the practice of good husbandry and the interests of the landlord are materially prejudiced thereby; or

(ii) if any part of the rent in respect of the holding is in arrear for a period of three months or if any lawful term of condition of the tenancy which is capable of being remedied is not performed or observed by the tenant:

..."

The obligation under ALTA alleged by the notice to quit to have been contravened arises under the statutory conditions and covenants prescribed in s.9 of ALTA, in particular s.9 (1) (e) (ii) which provides that the following covenant is implied in every contract of tenancy of an agricultural holding subsisting at or after the commencement of the Act (29 December 1967) on the part of the tenant;

"not to part with the possession of, mortgage, assign, sublet or otherwise alienate the holding or any part thereof without the consent in writing of the landlord previously obtained, which consent shall not be unreasonably withheld, and then, only in accordance with the provisions of this Act;"

The breach of the implied covenant constituted by the unauthorised grant of the mortgage was capable of being remedied by the discharge of the mortgage by the tenant. Section 37(1) (b) of ALTA did not apply in the circumstances of this case which are covered by s.37 (1) (c) (ii). A period of three months was the appropriate notice period.

The argument that the notice to quit is bad because the lease was governed by the LTA is without substance. We note that this submission is inconsistent with the position adopted by the Appellants elsewhere in their submissions where and when it suits them to contend that the lease was governed by ALTA. The contention regarding the period of notice just discussed provides an example.

The submission that the lease is governed by LTA is based on s.8 (3) of ALTA which provides that an instrument of tenancy if registrable under LTA shall be registered in accordance with the provisions of that Act, and notwithstanding s.60 of ALTA all the provisions of LTA shall apply to the instrument of tenancy and all dealings relating thereto. Section 60 of ALTA provides:

" Except as is in this Act expressly provided, nothing contained in this Act shall affect prejudicially any power, right or remedy of a landlord or tenant or other person, vested in or exercisable by him by virtue of the provisions of any Act or by, under or in respect of any contract of tenancy or other contract."

The effect of these provisions is that LTA, which deals with the registration of transactions and priorities, applies to the lease, but there is nothing in LTA which modifies or qualifies the provisions of ALTA as to the termination of a tenancy for breach of a statutory condition or covenant implied under s.9 of ALTA.

We consider that the effect of ss.8 and 60 of ALTA is not to exclude the lease from the provisions of ALTA. Indeed if the sections had this effect, all contracts of tenancy that are registered under LTA would be excluded from ALTA, and quite clearly that would be contrary to the intention of ALTA. As the Court of Appeal observed in Soma Raju v Bhajan Lal [1976] 22 FLR 163 at 176, ALTA is a special Act dealing with rights in agricultural land. LTA is a general Act dealing with the registration of interests in land and priorities conferred by registration, and does not displace the special provisions of ALTA in its application to agricultural land. In that case, the Court of Appeal held that a contract of tenancy under ALTA was a creature of statute, and could only be determined in the manner provided by ALTA. Counsel for the Appellants argues that this Court should not follow the decision of the Court of Appeal in Soma Raju v Bhajan Lal. We reject that submission. The principal judgment of the Court of Appeal, delivered by Spring JA, is a carefully reasoned judgment relying on the provisions both of ALTA and LTA. We agree with those reasons.

The effect of s.8 of ALTA is to extend the registration provisions of LTA to contracts of tenancy in registrable form. Its effect is not to exclude contracts of tenancy in registrable form from the provisions of ALTA. Section 60 is expressed to be "Except as is in this Act expressly provided ...." making it clear that the express provisions of ALTA, such as ss.9, 37 and 38 continue to apply. That this result is intended is made clear by s.9 (2) of ALTA 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."

The argument that the first Respondent did not have valid title as lessor to give the notice to quit is not one that is open as a matter of law, or as a matter of fact on the evidence.

As a matter of law the Appellants are estopped from denying the title of the lessor under whom they hold possession. In "Woodfall, Landlord and Tenant", Looseleaf Ed. Vol 1, 1.037 the learned authors say:

"It is one of the first principles of the law of estoppel, as applied to the relations between landlord and tenant, that a tenant is estopped from disputing the title of his landlord. This applies to written and oral tenancy agreements as well as leases under seal. Thus a lessee cannot dispute his lessor’s title by setting up an adverse title, whilst retaining possession..."

It is no answer to a notice to quit that in law the landlord does not hold title to the premises: See Stratford v Syrett [1958] 1 QB 107.

As a matter of fact the Appellants have pleaded in Civil Action No. 854 of 1985 by way of counterclaim that the first Respondent improperly obtained the registration of a foreclosure of mortgage that caused him to become the registered proprietor of the 12 undivided 25th shares of the land which he did not already own on 15 June 1978. Whilst the entry recording the first Respondent as the registered proprietor remains on the Certificate of Title, the first Respondent is entitled to rely on the indefeasibility of his title as owner of the land and to rely on his registration as proof of title; see LTA s.38. As a matter of law the Appellants are also estopped in the circumstances of this matter from disputing the title of the first Respondent in Civil Action No. 854 of 1985.

Finally, on the question of the validity of the notice to quit, it is contended that the notice is invalid as it did not include a claim for compensation. Section 38(1) of ALTA provides:

" 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."

Section 38 must, of course, be read with s.37 which prescribes the circumstances where a landlord may terminate a contract of tenancy, and specifies periods of notice. In this case the Appellants contend that for the notice to quit to be valid, it was required by s.38 (1) (c) to state that the tenant make reasonable compensation in money for the breach of covenant alleged. The Court of Appeal dismissed this argument in a sentence, saying that

"it is well settled that omission from the notice of any request for compensation does not invalidate the notice but merely disentitles the landlord from recovering compensation in a subsequent action for forfeiture and damages for breach of covenant."

Section 38(1) is in a form commonly found in statutes relating to tenancies and leases. In material respects it is in the same terms as s.105 (1) of the Property Law Act (Cap 130) and s.146 of the Law of Property Act 1925 (UK). The provision has its genesis in s.14 of the Conveyancing and Law of Property Act 1881 (UK). The leading case on whether compensation must be claimed in a notice to quit is Lock v Pearce [1893] UKLawRpCh 50; [1893] 2 Ch. 271. That was a decision under s.14 of the Conveyancing and Law of Property Act 1881. A notice given under the section required the lessee to remedy a breach of covenant but did not require payment of compensation in money. The notice was nevertheless held to be good. Lord Esher M.R. at 276 said:

"Therefore it seems to me that the meaning of the section is that the breach must be remedied if it can be, and there must be compensation besides that, if there is anything for which to compensate. I go further, and say that the lessor need not, if he does not want any compensation, ask for it. If he does not want compensation, why should he ask for what he does not want? The effect of his not asking for it, to my mind, is that if he obtains an order in an action of ejectment, requiring the lessee to remedy the breach, he cannot subsequently ask for any further compensation. That seems to me the proper meaning of the section."

Lindley L.J. at 279 said:

"Supposing the lessor does not want compensation, is the notice to be held bad because he does not ask for it? There is no sense in that. The meaning is to be found by looking a little further on. The sub-section begins by saying that the right of re-entry or forfeiture shall not be enforceable unless proper notice is given and the lessee fails within a reasonable time afterwards to remedy the breach and to make reasonable compensation in money to the satisfaction of the lessor. The sense of that is that the lessor must tell the lessee what he wants done. The lessee is entitled to know what his landlord complains of, and, if his landlord is entitled to compensation, whether he wants compensation."

Kay L.J. agreed with the other members of the Court. This decision of the Court of Appeal has been consistently applied ever since; see for example Woods v Tomlinson & Anr. [1964] NZLR 399, Civil Service Co-operative Society, Limited v McGrigor [1923] 2 Ch. 347, Rugby School (Governors) v Tannahill [1935] 1 KB 87, and "Woodfall, Landlord and Tenant" Looseleaf Ed. Vol 1, 17.133.

For these reasons we conclude that the notice to quit was not invalid.

Service of the notice to quit

The next issue is whether the notice to quit was validly served in accordance with the requirements s.39 of ALTA. Section 39 provides that any notice or other document required or authorised to be served under ALTA may be served in any one of five ways. One of those ways is by personal service. The fact that four other ways are prescribed indicates that the service need not be personal. The first Respondent sought to serve the notice of quit under each of the following two provisions:

" 39. ......

(a) by sending it by registered post to the usual or last known place of abode of the person on whom it is to be served;

or

......

(c) by leaving it at the usual or last known place of abode of that person; or"

It is difficult to understand why the Appellants continue to insist that the notice of quit was not properly served as the evidence is clear that the notice to quit was affixed to the deceased’s place of residence at Vesida Place, some four and a half miles from Nasinu, the address at which the proceedings in this matter were later served personally upon the deceased. The notice was thus served on the deceased. The Appellants’ arguments seeks to divert attention from this obvious fact to a possible difficulty that arises in respect of the first Respondent’s attempt to comply with the method of service specified in s.39 (a). As it was not possible at the time through the postal authorities to have a mail item delivered by registered post to a residential address, the first Respondent forwarded the notice by registered post to Post Office Box 3623, Samabula, Suva. This was, as the Appellants admit, the deceased’s postal address. The trial judge took a pragmatic and realistic approach to the issue, saying "my view is that the section must be read to allow service by registered mail at a post office box. It seems to me that the post office box is as much an extension of the addressee’s place of abode as is a letter box on the garden gate. It is certainly much more secure". The Court of Appeal agreed. It is unnecessary for us to decide whether the proper construction of s.39 (a) permits service in this way, as the notice to quit was undoubtedly served in accordance with the provisions of s.39(c).

It is not to the point for the Appellants to adduce evidence, as they have endeavoured to do, that the deceased was overseas in the months when the first Respondent endeavoured to serve the notice to quit. As we have observed above, s.39 does not require personal service. The Act is drawn on the footing that a tenant, if he is absent from the premises, will make appropriate and proper arrangements for the oversight of the property and his business affairs during his absence.

Evidence that the land was "exempted" land

Ground 9 of the notice of appeal contends that the Court of Appeal erred in rejecting the tender of fresh evidence which was intended by the Appellants to establish that the land was "exempted" from the provisions of ALTA. Section 58(f) of ALTA permits the Minister to make regulations exempting any agricultural land or contracts of tenancy of such land from the provisions of the Act. Regulation 4(c) of the Agricultural Landlord and Tenant (Exemption) Regulations exempts from the provisions of ss.6, 7 and 13 of ALTA agricultural land delineated in Plans Nos. PP41 and PP42 held by the Director of Lands. By the fresh evidence, the Appellants sought to establish that the land fell within the relevant area delineated in Plan PP41. The Court of Appeal permitted Mr Narayan, a technician from the Lands & Survey Department, to be called to give evidence before the Court. He produced a number of plans but the Court was not satisfied that it was possible to positively identify the delineated boundaries on PP41 with the boundaries of the "Bala" land. As the evidence failed to satisfy the Court of Appeal that it would establish that the land was within the "exempted" area, the Court rejected the application to adduce fresh evidence.

This Court has no transcript of the evidence which was received orally from Mr Narayan. No information has been placed before this Court to justify departing from the finding of fact made by the Court of Appeal. In these circumstances the Appellants fail to establish that the Court of Appeal erred in rejecting the evidence.

More importantly, for another reason this ground of appeal cannot assist the applicants. Even if the land was within an "exempted" area, only ss.6, 7 and 13 of ALTA would no longer apply to the land. Section 6 deals with mandatory minimum terms of contracts of tenancy under ALTA. Section 13 provides that in some circumstances contracts of tenancy are extended. Neither of these sections have any relevance to this case. Section 7 provides that contracts of tenancy under ALTA shall not be terminated except in the manner provided by ALTA. If the land was exempted land, it would no longer be subject to the protection of s.7, but the tenancy could still be terminated by a notice to quit given under the general law. Section 9 of ALTA would continue to apply so as to imply the covenant by the tenant against mortgaging the land without consent. The notice to quit would still be a valid notice as it specified with particularity the matters required to be stated in a valid notice to quit.

Relief against forfeiture

Ground 7 of the notice of appeal alleges "that both the primary judge and their Lordships erred in law in wrongly holding that the respondent had determined the lease by re-entry by issuing a writ and statement of claim in Civil Action 854/85 and that the appellants right for relief from forfeiture does not subsist..."

Plainly this ground of appeal challenges the finding that the Appellants no longer have a right to relief against forfeiture. The same challenge is also made in ground 6 of the notice of appeal. It is less clear whether the ground also challenges the finding that the Respondent lawfully terminated the lease by re-entry by issuing and serving a writ and statement of claim in Civil Action No. 854 of 1985. In so far as the ground of appeal intends to challenge the finding that re-entry occurred by the commencement and service of the proceedings for possession, the ground cannot be sustained. The law is clear that upon the expiry of the proper period stated in a notice to quit, the landlord must effect re-entry to terminate the tenancy and bring about its forfeiture. Re-entry may occur by the physical retaking of possession of the premises, or by doing what the law regards as equivalent to actual re-entry, namely the issue and service of a writ for possession: See Canas Property Co Ltd v K L Television Services Ltd [1970] 2 All ER 795 at 799 and Billson v Residential Apartments Ltd [1992] 1 All ER 141. Personal Service of the proceedings for possession took place on 27 September 1985.

The trial judge held that the Appellants have no subsisting right to seek relief against forfeiture, and that finding was upheld by the Court of Appeal. The Court of Appeal reached that conclusion based on s.37 (2) (a) of ALTA. Section 37(2) provides:

"(a) The tenant may, at any time before the expiry of a notice lawfully given and served upon him under the provisions of paragraphs (b) and (c) of subsection (1) and of section 39, apply to the tribunal for relief against forfeiture and pending the award of the tribunal, such tenant shall not be evicted;

(b) The tribunal shall consider and decide upon any application made to it under the provisions of this section within the period of twelve months specified in sub-paragraph (ii) of paragraph(f) of subsection (1) of section 9."

The Court of Appeal noted that the tenant had not applied before the expiry of the notice to an Agricultural Tribunal for relief against forfeiture, and held that the failure to do so brought to an end the Appellants’ right to relief.

We have come to the conclusion that the Appellants have lost their right to relief against forfeiture, although for reasons which differ from those given by the Court of Appeal.

The conclusion of the Court of Appeal assumes that the only right which the Appellants had to apply for relief against forfeiture arose under ALTA. We agree with that assumption. We have already noted that ALTA is a special Act which deals with rights in agricultural land. Section 105(2) of the Property Law Act is a general law empowering the High Court to grant relief against forfeiture of a lease. However s.105 (8) (e) provides that s.105 does not extend to any contract of tenancy of agricultural land which is subject to the provisions of ALTA. ALTA establishes a special regime for the regulation of contracts of tenancy of agricultural land. Under that regime Agricultural Tribunals are empowered to grant relief against forfeiture: see ss.22 (g) and 37(2). Section 38(2) further empowers the Tribunal to grant relief against forfeiture on such terms, if any, as to costs or expenses as the Tribunal in the circumstances of the case thinks fit. It follows that the only rights which were available to the deceased to apply for relief against forfeiture were those specified in ALTA.

Section 37(2) (a) is in our view procedural in nature. By its terms, it requires that an application for relief against forfeiture where the landlord seeks to terminate the tenancy by notice must be made to the Tribunal before the expiry of the notice. However, s.18 of ALTA which prescribes the powers of the Tribunal includes the power in s.18 (1) (d) to extend any period of time whether in relation to a notice or otherwise specified in the Act. This is a power to extend time limits which are procedural in nature, and in our opinion would authorise an extension of time in s.37 (2) (a).

However, we think that the Appellants nevertheless encounter a fatal problem under s.37 (2) (b) of ALTA. We consider that paragraph imposes a limitation upon the exercise of jurisdiction by the tribunal. The tribunal in exercise of its power to consider an application for relief against forfeiture must decide the application within the twelve month period specified in s.9(1)(f)(ii) namely within twelve months from the termination of the tenancy. In this case, the tenancy terminated upon service of the writ for possession on 27 September 1985. Whilst the tribunal in our view had power to extend the time within which to commence proceedings seeking relief against forfeiture, that power could not usefully be exercised beyond a point where it remained possible for the tribunal to consider and decide the application within 12 months of the termination of the tenancy. In short, when 27 September 1986 had passed, the possibility of obtaining relief against forfeiture came to an end, and no extension of time under s.37 (2) (a) could alter that position.

Waiver

In ground 10 of the notice of appeal the Appellants contend that the Court of Appeal erred in not holding that the first Respondent by commencing Civil Action No. 422 of 1988 waived his notice to quit and his right to terminate the lease.

The proceedings to specifically perform the option to purchase the lessee’s interest in the lease were filed on 16 June 1988, some two years and nine months after the first Respondent had effected re-entry and forfeiture of the lease. The Appellants contend that at the time when Civil Action No. 422 of 1988 was commenced, the first Respondent had alternative and inconsistent rights, namely his rights arising under the notice to quit, and his rights in respect of the option to purchase. The Applicants contend that the first Respondent elected to exercise his rights in respect of the option and thereby waived the rights arising under the notice to quit. The Appellants put their argument in these straightforward terms:

"In effect the Respondent elected to waive the Notice to terminate their lease and decided to purchase lease No. 53574. What else was he going to purchase? He is therefore estopped from relying on the Notice".

The Court of Appeal dismissed this argument saying that the submission failed to recognise that the issue and service of the writ for possession operated as a final election by the first Respondent to determine and cancel the term of the lease. The fact that the proceedings for possession were still pending was of no consequence.

In our opinion the Court of Appeal was correct. Further, in a tenancy situation where a period of notice has been given to remedy a breach of a covenant, and the tenancy is then brought to an end, for there to be a waiver by the landlord, there must be conduct on his part which indicates an intention to revive the tenancy so that its original terms apply and rent continues to be paid: Clarke v Grant [1950] 1 KB 104 at 105-106. In the present case the conduct of the first Respondent provides no evidence of an intention to revive the tenancy. The Respondent at all times following the re-entry and termination of the lease refused to accept further rent, and demonstrated a determination to recover actual possession of the land.

For these reasons we consider that the appeal should be dismissed with costs.

This matter has been dragging on for far too long and it is in the public interest as well as the interest of the parties that it be brought to an end as soon as possible. Counsel for the Appellants in the course of oral argument indicated an intention to continue the dispute in an Agricultural Tribunal. We again draw the attention of the Appellants to the provisions of s.62 (3) of ALTA. The tribunal is by that subsection prohibited from entertaining any application for adjudication upon any issue which has been decided between the same parties by a court of law. The Supreme Court by this decision has now upheld the decision of the lower Courts that the first Respondent has at law re-entered the land and that lease No. 53574 has been terminated. Further, the Supreme Court has upheld the ruling that the Appellants no longer have any subsisting rights to relief against forfeiture. In the face of this judgment, for the Appellants to pursue a claim for relief against forfeiture in an Agricultural Tribunal would be a serious abuse of process.

Hon. Justice John von Doussa
Judge of Supreme Court

Rt. Hon. Justice Sir Kenneth Keith
Judge of Supreme Court

Hon. Justice Robert French
Judge of Supreme Court

Solicitors:
Messrs. G.P. Shankar and Company, Ba for the Appellant
First Respondent in Person
Office of Attorney General, Suva for the Second and Third Respondent