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Attorney-General v Antonio [1999] KIHC 20; HCLA 074.97 (26 March 1999)

IN THE HIGH COURT OF KIRIBATI
(BEFORE THE HON R LUSSICK C.J.)

HCLA 74/97

BETWEEN:

ATTORNEY GENERAL IN
RESPECT OF THE REPUBLIC
Appellant

AND:

ANTONIO & ORS
Respondents

Ms T Beero for the Appellant
Mr B Berina for the Respondents

Date of Hearing: 19 March 1999

JUDGMENT

The respondents are the owners of land which is subject to a 99 year lease to the Government (the appellant). In case no. 300/97, the respondents sued the appellant for damages for sub-letting the land without their consent.

The Single Magistrate had to decide a preliminary issue which has become the subject of this appeal. That issue was whether or not the lessee was permitted under the terms of the lease to sub-let the property without first obtaining the landowner's written consent. It was not disputed that the appellant had in fact granted a sub-lease.

The controversy arose from the wording of clause 5 of the lease. Clause 5 reads as follows:

"5. A sub-lease shall be negotiated without the written consent of the Landowner".

The Single Magistrate was of the view that the use of the word "negotiated" made the meaning of Clause 5 unclear and that therefore the provisions of section 17 of the Native Lands Ordinance should come into effect to prohibit the granting of a sub-lease without the lessor's consent. Section 17 provides.

"17. There shall also be implied in any lease or sub-lease, unless specifically stated to the contrary, that the lessee will not sub-let the land comprised in the lease or sub-lease without the consent of the lessor".

That decision is now appealed as follows: "Upon the grounds that the Magistrate erred in law in finding that the Leasee under the lease between the parties numbered 1746/64 requires the consent of the Lessor before a sub-lease can be entered into".

We must confess that we cannot understand why the interpretation of Clause 5 has caused so much difficulty. Perhaps the drafting could have been better but its meaning is still quite clear. The wording of the clause arises from the fact that the parties used a standard printed form. The original wording of clause 5 on the printed form was:

"5. A sub-lease shall not be negotiated without the written consent of the Landowner, which shall, however, not be unreasonably withheld".

Instead of redrafting the clause, the parties arrived at the present Clause 5 by simply deleting the word "not" and all of the words appearing after "Landowner". The intention of the parties was clearly to give clause 5 an opposite meaning to that shown on the printed form.

Clause 1 of the lease makes the lease subject to Part VI of the Native Lands Ordinance. Part VI deals with leases and contains section 17 mentioned earlier. Had the parties intended that the lessee would need the lessor's consent to sub-let, then all they had to do was delete clause 5 entirely. Instead, they went to the trouble of amending it to its present form.

The use of the word "negotiated" should not have caused any problem understanding the meaning of the clause. It appears to us that the only confusion lay in the failure of the Single Magistrate – and of the counsel who argued the case – to appreciate the meaning of the verb "negotiate" when used in the context of clause 5. It is true that when used in its intransitive sense the verb can mean "confer". If it had been used in that way, Clause 5 would indeed appear to serve no purpose. All it would have permitted the lessee to do was to confer with others about the possibility of a sub-lease without being able to grant one. But it is quite obvious that "negotiated" where used in clause 5 is not an intransitive verb but a transitive one, the direct object being "a sub-lease".

According to The Concise Oxford Dictionary, the verb "negotiate" when used in its transitive sense can mean "arrange (an affair) or bring about (a result) by negotiating". Clause 5 could therefore be paraphrased as:

"A sub-lease shall be arranged without the written consent of the Landowner", or "A sub-lease shall be brought about without the written consent of the Landowner".

In our opinion, the parties to the lease intended what they in fact said. Clause 5 is not ambiguous. The language used expressed the clear intention of the parties that the lessee was to be allowed to sub-let the property without having to obtain the lessor's written consent. Since such intention was specifically stated, the condition implied by section 17 of the Native Lands Ordinance had no application.

It follows that the decision of the Single Magistrate was wrong in law and cannot be allowed to stand. We therefore allow the appeal and order that the decision of the Single Magistrate be set aside.

THE HON R B LUSSICK
Chief Justice
(26/03/99)

TEKAIE TENANORA
Magistrate
(26/03/99)

BETERO KAITANGARE
Magistrate
(26/03/99)