VIJAY PRASAD as the Executor and - Judiciary Fiji

IN THE HIGH COURT OF FIJIAT SUVACIVIL JURISDICTIONCivil Action No. HBC 217 of 2009BETWEEN:VIJAY PRASAD as the Executor and Trustee in the Estate ofBHAGWAN DIN of Samabula, Suva, Fiji.PLAINTIFFAND:THE DIRECTOR OF LANDS AND MINERAL RESOURCES,Government Buildings, Suva.FIRST DEFENDANTAND:SAMUELA MATEI aka SAM MATEI of Baulevu, NausoriSECOND DEFENDANTAND:THE ATTORNEY GENERAL OF FIJI,Suvavou House, Victoria Parade, Suva, Fiji.THIRD DEFENDANTCOUNSELS : MR MAHARAJ V for the PlaintiffMS TUIMANU V for the 1st and 3rd DefendantsDATE OF HEARING: 15TH AUGUST, 2012DATE OF JUDGMENT: 3RD APRIL, 2013JUDGMENT1. The writ of summons filed by the Plaintiff on 23rd July 2009. As detailed in thestatement of claim, Plaintiff stated:(a)He is the executor and trustee in the estate of Bhagwan Din (deceased);(b) The widow of the deceased, Sam Pati, is the sole beneficiary in the estate ofBhagwan Din and in occupation of the property comprised in tenancy at Will 13228(Ref. LD 4/14/1403) being Lot 2 on R2076 and Lot 7 on R2076 (Property which issubject matter of this case;(c)(d)2nd Defendant is a trespasser;Plaintiff claimed deceased and his family (inclusive of the Plaintiff) were in1

lawful occupation of the said property for more than 80 years and upon takingpossession of the said property and developed the land for cultivation and constructeda 5 bedroom house with usual amenities;(e) Further he bought bulls and cows and the said property was also used by thePlaintiff for grazing purposes;(f) The Plaintiff made an application being a sitting tenant for issuance of a leaseon 21st July 2003 to the 1st Defendant upon payment of requisite application fees;(g) The officer of 1st Defendant visited the property assured that the lease wouldbe issued to the Plaintiff;(h) The first Defendant failed to issue the lease to the Plaintiff and continued toreceive the lease rentals;(i) The first Defendant by the eviction notice dated 16th of July 2007 purportedlycancelled the tenancy without any lawful cause without giving any consideration tothe investment and development made by the late Bhagwan Din and his family.(j) Plaintiff contended the tenancy at will was cancelled unilaterally and withoutproper cause.(k) On representation made by the servant and/or Agent of the First Defendantthe Plaintiff expended more money for cultivation and farming;(l) Further, on the commitment made by the 1st Defendant, Plaintiff formed alegitimate expectation that the lease for the said property would be allocated to him inhis capacity as lawful trustee of the Estate of Bhagwan Din;(m) Alleged that the 1st Defendant had acted in bad faith and consequently thePlaintiff and beneficiaries in the Estate of Bhagwan Din have suffered loss anddamages;Plaintiff's Claim1. An order for a Declaration that the Plaintiff entitled to a lease in respect of Lot 2 onR2076 and having reference No. LD 4/14/403.2. An Injunction restraining the second Defendant from obstructing or interfering withthe Plaintiff's right to quite enjoyment of the said property under further Order of this Court.3. Statement of claim was served on the Defendants on 24th July 2009 and Affidavit ofService was filed on 3rd August 2009 and acknowledgement of service was filed by Office ofthe Solicitor General on behalf of the 1st and 3rd Defendants.4. Statement of Defence was filed by the 1st and 3rd Defendants on 27th August 2009and stated therein:(a)Admitted part 1 of the statement of claim that Plaintiff is the executor and2

trustee of the Estate of Bhagwan Din vide Probate No. 25596;(b) Plaintiff had no right of occupy and to use the land and is not transferrableand denied paragraph 2 of the statement of claim;(c) Admitted that para 3 of the statement of claim and stated that the 1stDefendant is the Department responsible for the renewing and assigning of crownleases amongst other functions assigned by the line Ministry;(d) Denied that 2nd Defendant is a trespasser and they don't have any knowledgeof same;(e)Admitted that 3rd Defendant is the representative of the Government of Fiji;(f) Denied para 6 of the statement of claim in totality and further stated tenancyat will agreement was endorsed by the First Defendant on 25th of November 1959which makes it 50 years of occupation till the date of filing statement of defence in2009;(g) Denied para 7 of the statement of claim subject land was leased out solely foragricultural purposes only;(h) Para 8 of the statement is denied and stated Plaintiff was not the applicantthat made the application for renewal;(i) Para 9 of the statement of claim is denied and as such Plaintiffs statement thatthe 1st and 3rd Defendants making an assurance to renew the lease is denied;(j) Para 10 of the statement of claim was denied and stated that 20 years leasedocument was prepared on 1st July 1982, however, it was not executed by thePlaintiff;(k) Denied para 11 of the statement of claim and stated tenancy at will does notoperate to crease a tenancy over the subject land and as a tenant at will the Plaintiffhad to vacate the land at the request of the First Defendant;(l) 1st and 3rd Defendants denied the paragraph 12 of the statement of claim thattenancy at will was cancelled unilaterally and without proper cause;(m) State that 1st and 3rd Defendants had no knowledge of the averment in para13 as such it was denied;(n)(o)Denied para 14 and stated the lease was rescinded for non execution;Denied para 15 of the statement of claim;(p) Stated replying to para 16 of statement of claim and further stated no loss anddamage caused to the Plaintiff.1st and 3rd Defendants sought:3

(a)(b)(c)An Order dismissing the Plaintiff's Claim;Costs;Any other relief this Honorable Court deems just.5. Plaintiff filed a Reply to the Statement of Defence and further stated:(a) The 1st Defendant by its conduct had assured the Plaintiff that a lease wouldbe issued to the Plaintiff;(b) Reiterated that the Plaintiff and his family were in occupation of the subjectproperty over 80 years;(c)Stated that property was utilized for the purposes stipulated in the conditions;(d) Stated the 1st Defendant failed to advise the Plaintiff that a 20 year leaseinstrument had been approved, prepared and prayed the reliefs in the statement ofclaim.6. Summons for directions filed by the Plaintiff on 30th April 2010. Pre trial procedureswere taken by the Plaintiff.7. Affidavit verifying Plaintiff's list of documents filed on 10th June 2010 and affidavitverifying Defendants list of documents filed on 30th June 2010.8. Minutes of the Pre-Trial conference held on 15th day of October 2010 was filed on10th November 2010.9. Agreed bundle of documents, and copy of Pleadings were filed on 7th February 2011.10. Affidavits verifying 1st and 3rd Defendants supplementary documents were filed on22nd March 2012.11. Brief of evidence of Ms Keola Wati was filed on 14th August 2012.12. This matter was taken up for hearing on 15th August 2012. Plaintiff's counsel statedthat the Plaintiff is not pursuing 1st relief prayed in the statement of claim, i.e."An order for a Declaration that the Plaintiff is entitled to a lease in respect of Lot 2on R2076 and Lot 7 on R2076 and having reference no. LD 4/14/1403".13. The issues raised in the Pre-Trial conference minutes are as follows:Issues for Determination(i) Whether the Plaintiff or his nominee is the legitimate holder of the tenancy atwill agreement since 25th November 1959 or before?(ii)Whether on the representation or otherwise of the servant and or employees of4

the first Defendant made to the Plaintiff to issue of a proper lease to the Plaintiff?(iii) Whether upon representations by the first Defendant the Plaintiff occupiedand built a permanent structure on the land in question and created a legitimateexpectation to Plaintiff to obtain a registered lease?(iv) Whether the Plaintiff is entitled to the issuance of a proper registered leasefrom the first Defendant or compensation for development in lieu thereof?(v) Whether the second Defendant has any rights whatsoever to be on the landand cultivate the same?(vi) Whether the first Defendant ought to have issued a registered lease under theState Lands Act in the circumstances of this case?(vii) Whether the Plaintiff has suffered any damages in consequences of thedecision of the first Defendant and what is the quantum?(viii)(ix)case.What is the cost? On party to party basis or on indemnity basis?Any other relief the Honorable Court may grant in the circumstances of the14. However, the Plaintiff having informed the court he is not pursuing the reliefs prayedunder para 1 of the statement of claim, I will only deal with the issue of as to whether thePlaintiff is entitle for damages.Analysis of Evidence Placed Before the Court15. Evidence by the Valuer, Mr Ramesh Behari from Fair View Valuations:(a) Valuation report dated 30th July 2012 was marked as Plaintiff's Exhibit P1;(b)floor;He stated that he saw the building dwelling made out of concrete, wooden(c) He stated building was valued at $27,000 which was stated in the report andhe further stated with the land it would have been further $15,000 increase of thevalue (it is noted that no valuation was available for the land);(d) In replying during the cross examination it was admitted there were two flatsand one was occupied by Ms Keola and other flat was vacant.It is important to note in the valuation report, it was stated that Mr Vijay Prasad, the Plaintiffin this case instructed Mr Behari to value the property. I also considered the Valuation Reportwhich does not give any basis of the valuation and method of valuation. Accordingly, Icannot concede to accept the valuation given in Plaintiff's exhibit P1, as it is.16. Evidence by Ms Keola Wati was filed prior to the hearing by way of brief of evidencewhich was filed on 24th August 2012 and witness Ms Keola sworn the counsel for the5

Plaintiff read out the evidence in brief and the Ms Wati admitted that same was signed by herat the office of M.C. Lawyers Solicitors for the Plaintiff.17. Ms Wati stated in her evidence in brief:(a) Vijay Prasad is her sister's son and she knew the Plaintiff since he was born.Until 1969 she was living with her husband until his demise at Wailoku;(b) She had moved to the Plaintiff's residence at Baulevu, Nausori the subjectland in 1971 to live with the Plaintiff's family;(c) She stated when she moved in the house was built on the land consisting offive bedrooms, two sitting rooms, one kitchen, toilet and bathroom and otheramenities. Partially house was built of concrete and partially of wood;(d) House was divided in two flats occupied by the family of the Plaintiff and hisbrother Jagdishwar Prasad;(e) Both brothers were engaged in farming and subject house was built by herbrother Bhagwan Din (deceased) more than 60 years ago;(f) The wife of Bhagwan Din is living with her son in United States with thePlaintiff;(g) The witness was living in the house over 40 years and continued to live in theproperty after the Plaintiff migrated to United States in 2006;(h) The Plaintiff had advised her to live in the property and look after it before hisdeparture to United States. He was awaiting the lease to be issued to him by LandsDepartment;(i) She had not received any notice from the Lands Department to vacate theproperty and she has no place to go since she doesn't have children and she will behomeless;(j) She stated that she continued with farming by getting one Avinesh Chand whois the son of her brother;(k) She alleged that in 2007, 2nd Defendant forcefully took the land onlyremaining is the house valued at 27,000 and stated Land Department shouldcompensate the Plaintiff. Alternatively the house with land on which the house is builtshould be given to the Plaintiff;(l) The witness was aware that the Plaintiff was paying the rent to the LandsDepartment until the 2nd Defendant took over the land and the Plaintiff paid $5000 tohis lawyers and said sum should be reimbursed.18. Under the cross examination by the counsel the witness stated that she was not payingany rent for 40 years.6

19. In the Agreed Bundle of documents Lease document dated 25th November 1959states:1) The right to occupy the land is not Transferrable;2) Land may be used for solely for the agricultural purposes and no building maybe erected thereon after the date hereof;3) The Tenant should vacate the land on receipt of notice to that effect and theletter dated 25th November 1959 does not operate to create a tenancy;4) The letter also stated the classification:Classification AcresCane farm 10.0House site 0.3This document is admitted by the Parties in their Statement of Claim and Statement ofDefence.20. On perusal of the document, I find that although the letter says land may be usedsolely for agricultural purpose by inserting house site as 0.3 acres and the Director of Landswas aware the lessee had the permission to build a house.21. The Statement of Defence paragraph 7 stated that the land was leased out solely forthe agricultural purpose. No evidence adduced by the Defendants to prove this position. Onlydocument available to the court to consider was the Crown Lease and I conclude for thereasons set out in the paragraph 19 the 1st Defendant was well aware that the Plaintiff waspermitted to have a house in the site.22. As I stated in the preceding paragraph 14, the Plaintiff was only pursuing the claimfor damages. Already I have concluded that the 1st Defendant was at the time of the issue ofthe Crown Lease there was a housing site and the Plaintiff's deceased father constructed thehouse. It is also evident that tenancy created by the First Defendant by letter dated 25thNovember 1959 Ref. L.D. 4/14/1403 para 5 states:"................compensation being payable for improvement as such the Plaintiff isentitled for compensation as damages".23. The document marked P1 and tendered in these proceedings through the Valuer, MrRamesh Behari was not contested by the 1st and 3rd Defendants. As I stated earlier, I am notsatisfied with the valuation report since the valuation do not give any basis only statementmade therein is "improvements made thereon as at date of valuation at Twenty SevenThousand Dollars ($27,000)":(a) The witness Keola Wati gave evidence on behalf of the Plaintiff stated thehouse is over 40 years old and no depreciation was calculated by the Valuer as at thedate of valuation 30th July 2012;(b)The only reason to award damages by me on this valuation is that it was not7

disputed by the Defendants and no evidence placed before me to the contrary.However, I use the inherent jurisdiction of this court to arrive at a figure consideringdepreciation of the value on improvements and conclude depreciating the value by25% of the P1:Valuation $27,000.00Less 25% for depreciation 6,750.00(27000 x 25/100)Value $20,250.00(c) The Defendants should have paid for the improvements on the above valuesoon after the cancellation of the Tenancy created by the Crown Lease on the Plaintiffby letter dated 16/7/2007. The 1st Defendant failed to do so. I award interest to thePlaintiff at 4% per annum from the date of the cancellation up to the date of thisJudgment considering loss of income on the compensation as at 3rd April 2013.Amount payable as compensation/damages:1) $20,250 from 16.7.2007 to 15.7.2012 (5 years)(20,250 x 4 x 5) = $ 4050.001002) Interest for 261 days 20250 x 4 x 261 = $ 579.20 100 365Total compensation to be paid:Compensation = 20,250.001) Add interest for 5 years = 4,050.002) Add interest for 261 days= 579.20$24,879.20The damages arisen due to the action of the 1st Defendant and I conclude the First Defendantshould pay the compensation as Special Damages, there is no liability of damages beingproven against the 2nd Defendant. 3rd Defendant is added as the legal representative of theGovernment of Fiji only and awarding damages does not arise.24. Accordingly, I order:(i) The 1st Defendant to pay the Plaintiff the total sum of $24,879.20 as at thedate of this Judgment i.e. 3rd April 2013 together with interest at the rate of 4% perannum on the said Judgment the sum of $24,879.20 until the payment is made;(ii)(iii)Claim for general damages is refused;Interest awarded under item (i) above;8

(iv) The 1st Defendant should pay summarily assessed costs of $2,500.00 to thePlaintiff within 14 days from this Judgment.Delivered at Suva this 3rd Day of April, 2013..................................C. KotigalageJUDGE9