IN THE COURT OF APPEAL OF FIJI

(CENTRAL DIVISION)
AT SUVA
CIVIL JURISDICTION

Civil Action No: 08 of 2010

BETWEEN: SEMI RALEQE of Lot 27 Tukana Street, Nadi, Soldier

1st APPELLANT

AND: TIMOTHY RALEQE of Lot 27 Tukana Street, Nadi, Policeman

2nd APPELLANT

AND: FILIPE SMIT of 3456 Allenby Street, Papatoetoe, Auckland,

New Zealand, Carpenter

RESPONDENT

RESPONDENT’S RESPONSE SUBMISSION

* NOTE: This submission has been prepared and filed on behalf of the Respondent by
Messers Singh & Tawake Law whose address for service is listed on the back cover
over-leaf.
[1] This is an appeal from the Fijian High Court and the Respondent through his
Counsels’ respond to the three grounds of Appeal brought before this
honourable Court.

[2] Briefly, the three issues to be tried before this Court are:

(i) Whether or not the learned trial Judge erred in law and in fact in
holding that there existed no legit and legally enforceable agreement
between Mr. Andrew Raleqe and our client, Mr. Filipe Smit?

(ii) Whether or not the learned trial Judge erred in law and in fact in
holding that the Appellants’ did not have an equitable interest on the
property of the Respondent?

(iii) Whether or not the learned trial Judge erred in law and in fact in
applying the principles of consent as per Section 11 of the Crown
Lands Act (Cap 132)?

[3] The Respondent through his counsels’ humbly submits the following in
response to the above grounds of appeal.

The first issue is based on the validity of the alleged agreement between the
Appellant’s late father and our client, Mr. Smit. This is a question of both law
and fact. It is paramount to analyse whether the purported agreement was
ever intended to be extended to the Appellants after death of their father, the
late Mr. Andrew Raleqe?

Prior to responding to the extension of the agreement, it is important to visit

the legislation governing the State Lands as such the Crown Lands Act (Cap
132) becomes applicable. We humbly wish to guide this honourable court to
Section 13 (1) of the Crown Lands Act (Cap 132) which provisions:

13.-(1) ……Any sale, transfer, sublease, assignment, mortgage or other alienation or

dealing effected without such consent shall be null and void….[Emphasis added]

[4] The above limb of the Crown Lands Act (Cap 132) is very precise and the
words are also clear as consent means the Director of Lands’ approval in any
dealing of such land. It is an established fact in this case that there was never
an approval from the Director of Lands as such the agreement if there was any
is void ab initio. The above can be sustained by the decision of the Privy
Council in Chalmers v Pardoe,1 where the consent of the NLTB was never
taken for the erection of buildings. The same principle ought to be applied in
this case. Similar principles were also applied in Bakar v Talib by the High
Court of Fiji where Inoke J ordered the defendants to vacate the land after 60
days.2

1
Chalmers v Pardoe [1963] 1 WLR 677
2
Bakar v Talib [2010] FJHC 8
[5] The counsels’ for the respondent further wishes to guide this honourable court
to Section 8 (1) of the Agricultural Landlord and Tenant Act (Cap 270) which
deals with the instrument or contract of tenancy. The statute reads:

“A contract of tenancy shall be evidenced by an instrument in writing called, in this

Act, an instrument of tenancy.”

The Appellants’ are relying on an alleged agreement which is evidenced merely by a

conversation as such this is inadmissible in this Court as in Kuppan v Unni where
Hyne CJ in the Supreme Court held that possession cannot be given to the defendant
on the basis of a mere friendly conversation. 3 Furthermore; the late Mr. Raleqe was
merely a caretaker for the respondent and even if there was an agreement, the same
was subjected to the consent of the Director of Lands. In sustaining this we wish to
cite the case of Turuva v Qauqau where the High Court ordered the defendants to
deliver immediate vacant possession of the land to the Plaintiff. 4

This satisfies that there exists no valid agreement or contract between the respondent
and the Appellants.

[6] Now, we wish to respond to the second ground of appeal which questions the
invocation of the doctrine of equity. On the outset, it is the fundamental policy
of the doctrine of equity that it cannot be used as a sword but a shield and one
who seeks equity must do equity and come with clean hands. The appellants
argue that they have an equitable interest on the respondent’s property which
needs to be protected as such, we guide this honourable court to the decision
of Gates J in Chand v Prakash 5 said that the doctrine of equity and estoppel
cannot be invoked to render valid a transaction which the legislature has
enacted to be invalid. Section 42 (1) of the Land Transfer Act (Cap 131)
provisions:

“No action for possession, or other action for the recovery of any land subject
to the provisions of this Act, or any estate or interest therein, shall lie or be
sustained against the proprietor in respect of the estate or interest of which he
is registered,….” [Emphasis]

[7] The appellants seek a remedy from this Court based on the doctrine of
proprietary estoppel or promissory estoppel however as submitted above,
such grounds will fail for the reason that any transaction dealing with the land
requires the consent of the Director of Lands which was neither present in the
original matter before the High Court nor in this honourable Court. We, further
submit that the Appellants have not satisfied that they have an “adverse
position” in the possession of the land as the Appeals Court in Yiu v Patel 6
held that an adverse position can only be created if the Appellants had
possession of the property for 20 years or more and in the current case, the
Appellants merely spent an year on the land and the deceased Mr. Raleqe
held possession for a total of 4 years bringing the total to 5 years.

3
Kuppan v Unni [1956] FLR 2
4
Turuva v Qauqau [2015] FJHC 853
5
Chand v Prakash [2011] FJHC 640
6
Yiu v Patel and Another [1957] 5 FLR 62
[8] It is further contended, that even if there were any agreement between the late
Mr. Raleqe and the respondent, the appellants could reside on the land until
the death of the promisee. This was ruled in Lawlor v Duaibe. 7 The Supreme
Court based its judgment on two elements those being:

(i) The intention of the parties to create legal effect of their agreement
and
(ii) The defendant could reside on the land only until his or her death.

The above stands binding upon this Court and in the circumstances, the
caretaker, Mr. Andrew Raleqe has passed away as such the respondent relies
strongly on the above case law.

[9] The respondent finally responds to the third and final ground of appeal which
deals with the application of the principles of consent as per Section 11 of the
Crown Lands Act (Cap 132). This limb of the statute in summary deems the
lessor or licensor on behalf of the Crown as the Director of Lands and it cannot
be more precise and clear. The only person who has the power to lease, sub-
lease or execute a contract of tenancy is the Director of Lands and others
authorised by the same. In the present case the lessee is Mr. Smit, the
respondent and the appellants are mere trespassers. As submitted supra in
[4], the transaction is invalid and void. The learned trial Judge did not err in
fact and law in holding the same.

[10] Finally, the respondent through his counsels’ submit that he is protected under
the Land Transfer Act (Cap 131) which states that no action for possession, or
other action for the recovery of any land subject to the provisions of this Act, or
any estate or interest therein, shall lie or be sustained against the proprietor in
respect of the estate or interest of which he is registered.8 Furthermore;
Section 39 of the same legislation states that the estate of registered
proprietor is paramount and his title guaranteed. Moreover, Section 32 of the
Crown Lands Act (Cap 132) demands that the appellants be evicted. We cite
that limb of the legislation below:

“Any person not claiming bona fide under a subsisting lease or licence or
otherwise under any Act relating to the occupation of Crown land who is found
occupying any Crown land or is found residing or erecting any hut or building,
depasturing stock or cutting any timber grown thereon, or clearing, digging up,
inclosing or cultivating any part thereof, shall be liable to immediate eviction
and shall be guilty of an offence against this Act”

7
Lawlor v Duaibe [1976] FJSC 23
8
Section 42 (1), Land Transfer Act (Cap 131), FJ
[11] The counsels’ respectfully and humbly submit and pray to this Court for the
following:

(i) The Appellants’ to deliver immediate vacant possession of the

property located at 27 Tukana Street, Nadi in the Western Division,

(ii) An order for costs,

(iii) Any other order the Court deems fit and just.

Respectfully submitted on this 08 day of June, 2010.

_________________________

Lawrence Singh (Mr.)

Counsel for the Respondent

_________________________

Diula Tawake (Ms.)

Co-counsel for the Respondent

_______________________
LAWRENCE VIKASH SINGH
PLAINTIFF in Person
PH: +679-955-5732
Tomuka,
LAUTOKA, FIJI.
______________________________