Mohammed Shameen Airud Khan v Itaukei Land Trust Board

• Jurisdiction: Fiji
• Judgment Date: 15 September 2022
• Neutral Citation: [2022] FJHC 593
• Court: High Court (Fiji)
• Docket Number: Civil Action No. HBC 209 of 2020
• Counsel: Mr V. Rokodreu for the applicant,Ms K. Suveinakama for the first respondent,Ms M. Ali with Mr S. Kant for the second respondent
• Date: 15 September 2022

In the High Court of Fiji

At Suva

Civil Jurisdiction

Civil Action No. HBC 209 of 2020

Mohammed Shameen Airud Khan

Applicant

v.

iTaukei Land Trust Board

First Respondent

Registrar of Titles

Second Respondent

Date of hearing: 25^th March, 2021

Date of Ruling: 15^th September, 2022

Counsel:

Mr V. Rokodreu for the applicant

Ms K. Suveinakama for the first respondent

Ms M. Ali with Mr S. Kant for the second respondent

Judgment

1. The applicant, in his originating summons seeks that the respondents comply with the Orders made by Justice Wati on 2^nd June, 2014; the first respondent grants consent for the transfer of Native Lease 20503, Lot 64 depicted as Lot 9 on Plan M 2716 in Macuata comprising an area of 22 perches by mortgage sale to him; and, the cancellation of the lease by the first respondent be declared null and void.

2. The following facts, as set out in the plaintiff's supporting affidavit are not in dispute. The first respondent initially transferred the lease to one Mohammed Alam. Alam mortgaged the lease to Colonial National Bank, now BSP. He defaulted in his repayments and the lease was advertised for mortgagee sale. The Bank accepted the applicant's tender and entered into a Memorandum of terms of sale with him. The first respondent granted the applicant consent for transfer by mortgagee sale for a period of 3 months. The documents pertaining to the transfer were lodged with the second respondent. The second respondent did not sign the memorial. Alam filed action against the Bank, the insurer, the second respondent and this applicant.

3. On 15^th October, 2020, I granted an interim injunction restraining the first respondent from dealing with the lease until this determination

The determination

4. The applicant's grievance is that the first respondent refuses to grant consent for the transfer of the lease to him, unless he pays the breach fee and arrears of rental. He contends that condition is unfair and inequitable, as he was neither in breach nor in arrears of rental. Alam was in possession of the lease during that period and he or the Bank has to pay the fee and arrears.

5. The position of the first respondent is that the applicant was granted consent only for three months. The applicant was informed that consent for the mortgagee sale would be provided once he or the Bank paid the arrears. The first respondent has an absolute discretion to grant consent under section 12 of the iTaukei Land Trust Act, subject to any condition it...