Hussain v Bi [1992] FJHC 18; Hbc0384j.89s (30 March 1992)

IN THE HIGH COURT OF FIJI
(AT LABASA)
CIVIL JURISDICTION

ACTION NOS. 384 AND 385 OF 1989

BETWEEN:

AHMED HUSSAIN
son of Din Mohammed
of Vunicuicui, Labasa, Cultivator.
Plaintiff

AND

KULSUM BI
daughter of Akil Mohammed
of Vunicuicui, Labasa, Domestic Duties.

AND

HALIMAN BI
daughter of Nasibdar of
Vunicuicui, Labasa, Domestic Duties.
Defendants

Mr. M. Sadiq: For the Plaintiff
Mr. A. Kohli: For the Defendants

Dates of Hearing: 29th August, 1990, 4th February, 27th May,
12th November 1991, 21st and 27th January
and 27th February 1992.
Date of Judgment: 30th March 1992

JUDGMENT

These actions were consolidated by an Order made on the 20th day of April 1990.

The Plaintiff is the registered lessee of a piece of land, over 29 acres in area known as Vuna Vuna at Labasa which he holds as purchaser from his sister one Fatima Bi under Native Lease No. 12739. The Plaintiff purchased the land from Fatima Bi for a price of $48,000.00 under an Agreement dated the 6th of December 1988 to which I shall have occasion to refer later.

The Defendants and their late husbands had occupied a small portion of the land under an arrangement with Fatima Bi and her late husband since approximately 1958, and presently they occupy two house sites of an area of half an acre each on the land. They have not been cultivating the other land for several years. By Originating Summons under Section 169 of the Land Transfer Act Cap. 131 issued on the 10th day of October 1989 the Plaintiff seeks vacant possession of the part of the land occupied by the Defendants.

Affidavits have been sworn and filed on behalf of the parties. These consist of two affidavits by the Plaintiff sworn respectively on 2nd day of October 1989 and the 11th day of April 1990 and affidavits by the Defendants sworn on the 23rd of October 1989 and by Fatima Bi also on the 23rd of October 1989.

Because these affidavits raised triable issues I directed that oral evidence be taken and I heard such evidence on various days between 12th of November 1991 and 27th of January 1992. In addition to the deponents I have named, one Prem Chand of Vunicuicui also gave evidence on behalf of the Defendants. I shall now summarise briefly the relevant evidence given before me.

The Plaintiff stated that his sister, Fatima Bi had brought him on to the land approximately 19 years ago when the Defendants were already occupying the portion of the land on which they are still residing. He said that after he had purchased the whole of the land from Fatima Bi he expected the Defendants to leave within a reasonable time and Fatima Bi had told him that it was his decision whether or not the Defendants should vacate the land. He stated that he had never told them that he would eventually give them their portion of the land nor did they ever ask him whether they could stay on the land.

For the Defendants, Haliman Bi and Kulsum Bi both gave virtually identical evidence. They said that after the death of her husband, Ali Mohammed, Fatima Bi his wife became proprietor of the land as Ali Mohammed's sole executrix and trustee; that the Plaintiff had been cultivating part of the land and subsequently brought an Agricultural Tribunal Action against Fatima Bi asking for tenancy of part of the land. The Tribunal Action was settled and Fatima Bi agreed to sell the land for $48,000.00 subject to the occupation of their portion of the land by the Defendants.

The Defendants stated that they and their husbands who had always lived on the land were assured by Fatima Bi and her late husband that they and their family could live on the land for the rest of their lives and that Fatima Bi had also assured them that if the land was ever sold it would be sold subject to their right of occupation.

As a result of these assurances both Defendants and their husbands carried out substantial improvements including the erection of dwellings worth $10,000.00 and $15,000.00 respectively and the planting of trees and crops.

They said that the Plaintiff was aware of their occupation and rights and that he purchased the land subject to these rights which was borne out by the Sale and Purchase Agreement dated the 6th of December 1988 which does not speak of vacant possession.

They also said that the Plaintiff had helped them lay a water drain and pipes to their houses.

They therefore claim that the Plaintiff is estopped from denying their rights as he was aware of the same before he purchased the land. They also said that they did not have any other land to live on and are solely dependant on their portion of it for their existence.

In cross-examination they stated that they had never paid any rent either to Fatima Bi or to the Plaintiff nor had they ever obtained the consent of the Native Land Trust Board to their occupation of the land. They relied simply on the assurances which they said Fatima Bi had given them as to their continued occupation.

When she was cross-examined Fatima Bi stated that she had never applied to the Native Land Trust Board for permission to be given to the Defendants to remain on the land but that she now thought such permission was necessary to allow the Defendants to remain. She denied that she had agreed to sell the whole of the land to the Plaintiff. When it was put to her that there was no such provision in the Agreement she said that she had meant provision to be made in it. She did not remember whether her solicitor Mr. Maqbool of Labasa who had prepared the Agreement had either explained it to her and she could not say whether if she had told him to do so he would have made such provision. She denied that she was giving evidence against the Plaintiff because she was not on good terms with him but she agreed that the Defendants had not filed any Caveat preventing her from selling her land to the Plaintiff.

The last witness called for the parties was Mr. Prem Chand who said that he had been Sirdar in the area for the last seven years and bore no animosity against the Plaintiff. He alleged that he had a number of conversations with the Plaintiff in which the Plaintiff had told him that, provided the Defendants did not lodge any Caveat against the Plaintiff's interest, the Plaintiff would let the Defendants remain on the land all their life-time.

In cross-examination Mr. Chand agreed that when the drain and water pipes had been laid on the land Fatima Bi was the owner and that the Plaintiff had no right to object at the time.

In answer to a question from me he stated that Fatima Bi had a good memory although Mr. Chand never had any occasion to test it, and that she was an intelligent person.

The above then is a short recitation of the evidence. I shall now consider the law which applies to this case.

The Plaintiff's case is that the Defendants are trespassers on the land and that through the Agreement with Fatima Bi of the 6th of December 1988 the Plaintiff acquired the whole of the land in Native Lease No. 12739 from Fatima Bi. He says that if it had been the intention of either Fatima Bi or himself that the sale of the lease should be subject to the occupancy during the life-times of the Defendants the Agreement for Sale would have contained a provision to this effect. It contains no such provision and therefore the Plaintiff is entitled to unencumbered possession. Alternatively he says that if the Defendants had acquired an equitable interest in the portion they are occupying by estoppel by conduct or representation either by Fatima Bi or himself, which he denies, then this would constitute a dealing within the meaning of Section 12 of the Native Land Trust Act Cap. 134 and that, since the consent of the Native Land Trust Board has never been obtained, the occupation by the Defendants is illegal.

The Plaintiff also relies on Section 39 of the Land Transfer Act Cap. 131 and says that in the absence of the required consent of the Native Land Trust Board and in the absence of the registration required under Section 37 of the Land Transfer Act, the Plaintiff's title is paramount and unimpeachable. Section 12 of the Native Land Trust Act reads as follows:

"12.-(1) Except as may be otherwise provided by regulations made hereunder, it shall not be lawful for any lessee under this Act to alienate or deal with the land comprised in his lease or any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever without the consent of the Board as lessor or head lessor first had and obtained. The granting or withholding of consent shall be in the absolute discretion of the Board, and any sale, transfer, sublease or other unlawful alienation or dealing effected without such consent shall be null and void:

Provided that nothing in this section shall make it unlawful for the lessee of a residential or commercial lease granted before 29 September 1948 to mortgage such lease.

(Substituted by Ordinance 30 of 1945, s.8; amended by 29 of 1948, s.3.)

(2) For the purposes of this section "lease" includes a sublease and "lessee" includes a sublessee. (Inserted by Ordinance 35 of 1943, s.2.)"

So far as relevant, Section 39(1) of the Land Transfer Act reads:

"39.(1) Notwithstanding the existence in any other person of any estate or interest, whether derived by grant from the Crown or otherwise, which but for this Act might be held to be paramount or to have priority, the registered proprietor of any land subject to the provisions of this Act, or of any estate or interest therein, shall, except in case of fraud, hold the same subject to such encumbrances as may be notified on the folium of the register, constituted by the instrument of title thereto, but absolutely free from all other encumbrances whatsoever................."

Over the years Section 12 of the Native Land Trust Act has been considered on numerous occasions by the Courts of this country; I find it necessary to refer to only four of these for present purposes. In Ram Narain v. Ram Kisun (1968) 15 F.L.R. 1 the Court of Appeal held, following the Privy Council decision of Chalmers v. Pardoe (1963) 3 ALL E.R. 552, that under the Native Land Trust Ordinance, the predecessor of the present Native Land Trust Act, any dealing in land which contravened Section 12 rendered the transaction unlawful, null and void.

In Lila Wati d/o Suruj Bali v. Madan Gopal s/o Ram Raj in the then Supreme Court at Lautoka C.A. No. 274 of 1976, on facts which if any thing were stronger in favour of the Defendant than those for the Defendants in the present case, the present Chief Justice held that a tenancy which had not been approved by the Native Land Trust Board constituted an illegal dealing within the meaning of Section 12 and that consequently, in the absence of any fraud by the Plaintiff, the Plaintiff's title had to prevail and he was granted an order for vacant possession.

Section 12 was again considered by the Court of Appeal in Civil Appeal No. 46 of 1985 Ram Devi v. Satya Nand Sharma and Maya Wati. The Court held that even subsequent approval by the Board is of no avail in Native Land Trust cases and said that the Court will not lend its aid to perfecting a scheme (of sub-division) already carried out in fact.

The facts in all four of these cases were different from those in the present but I mention them to emphasise yet again the importance of any party claiming an interest in land subject to the Native Land Trust Act to first obtain the consent of the Native Land Trust Board to the dealing in question.

It is clear in my judgment from the facts that the Defendants are here claiming an equitable life interest in the small portion of the Plaintiff's land they are occupying and that this constitutes a dealing in the land to which the prior consent of the Native Land Trust Board must first have been obtained. In his submission on behalf of the Defendants Mr. Kohli argued that the Plaintiff should have called direct evidence from the Native Land Trust Board to prove that no consent of the Board was ever obtained to the Defendants' occupancy but I reject this submission. It resolves itself into a matter of tactics and in this case although the Plaintiff did not call any direct evidence from the Board, nevertheless through his cross-examination of the two Defendants and Fatima Bi, counsel for the Plaintiff was able to establish to my satisfaction, so much so that I now find as a fact, that no consent of the Board was ever obtained. On the authorities I have cited I consider such consent was vital if the Defendants hoped to establish the rights they claim to the land they occupy.

I also consider that the Plaintiff is correct in asserting that if it had been desired by himself or Fatima Bi to give any interest in the land to the Defendants this should have been mentioned in the Agreement of the 6th of December 1988. It was not. The preamble to the Agreement recites that the Vendor has agreed to sell and the Purchaser has agreed to buy all the land comprised in Native Lease No. 12739. (My emphasis.) Clause 9 provides that:

"The Vendor undertakes and shall give the Purchaser the said land free from encumbrances."

Finally the Agreement states that the contents of it had first been read over and explained to the parties in the Hindustani language and they appeared fully to understand the meaning and effect thereof. This Agreement, it must be added, was witnessed by Fatima Bi's solicitor Mr. Maqbool who is an experienced lawyer and by the Plaintiff's solicitor and I find Fatima Bi's attempt to persuade me that she had instructed Mr. Maqbool to include a clause making the sale subject to the Defendants' occupation unconvincing. Indeed in the affidavit which was sworn on the 23rd of October 1989 in support of the Defendants' she states in paragraph 4:

"That the Tribunal Action was settled and I sold the whole land to Ahmed Hussain."

Her attempt to persuade me that she did not mean to sell the whole land to the Plaintiff must fail. I observed her closely during her evidence and I find her an unsatisfactory witness.

Counsel for the Defendants attempted to rely on the Privy Council cases Sheila Maharaj v. Jai Chand (1986) 1 A.C. 898 and Kulamma v. Manadan (1968) A.C. 1062 but in my view these cases do not assist the Defendants in as much as the facts are much different from those in the instant case and the Privy Council in any event re-affirmed the necessity of obtaining the consent of the Native Land Trust Board to any transaction falling within the purview of Section 12.

The Defendants placed much reliance on alleged promises of Fatima Bi and her late husband to give them an interest in the land but the Plaintiff was never a party to any such arrangement if one were made and furthermore, there is no evidence of any consideration passing from the Defendants to the Plaintiff in respect of any such alleged arrangement unless it be the alleged promise of the Plaintiff not to evict the Defendants in return for them not lodging any Caveat against the Plaintiff when he purchased the land. But what caveatable interest do the Defendants have? They deny that their alleged arrangement with the Plaintiff or Fatima Bi could be described as a dealing which is described in Section 2(1) of the Land Transfer Act as any transaction of whatsoever nature by which land or any estate or interest therein is affected by the Act. Rather they say the arrangement was purely personal. If so then in my view in any event they have no caveatable interest in the land so that even if, as they claim, the Plaintiff promised to allow them to remain on the land in return for them not lodging a Caveat against him, such a promise would be unenforceable in law.

Over the years there have been numerous cases in Australia and New Zealand on the question of what constitutes a caveatable interest and the question in each case was whether or not a proprietary interest in land existed. The answer to that question determined whether or not the interest was caveatable. A selection of these cases which is not said to be exhaustive is set out in Baalman - The Torrens System in N.S.W., Second Edition at pp. 300-303. At p.303 the author quoted Lord Brougham who said in Keppel v. Bailey [1834] EngR 448; (1834) 2 My. & K. 517 at 535; 39 E.R. 1042:

"It must not be supposed that incidents of a novel kind can be devised and attached to property at the fancy and caprice of any owner. It is clearly inconvenient both to the science of the law and the public weal that such a latitude should be given. There can be no harm in allowing the fullest latitude to men in binding themselves ... to answer in damages for breach of their obligations ... but great detriment would arise and much confusion of rights if parties were allowed to invent new modes of holding and enjoying real property."

Baalman suggests that Lord Broughman's dictum is a sound criterion for differentiating circumstances which do, from those which do not, create interests in land capable of supporting a caveat and in my judgment is very relevant to the facts of this case.

As a result of this litigation the Defendants have been able to continue to occupy their portion of the land for some two and half years more than they would have been able to if they had not contested the Plaintiff's claim. Counsel for the Plaintiff stated that the Plaintiff would be willing to allow the Defendants to remain in possession for another six months to remove their buildings and he was aware that the Defendants are widows. Paying due regard to the length of time the Defendants have occupied the land and that they are both widows I believe in all the circumstances it would be reasonable to allow them until the end of September 1992 in which to vacate the land. I therefore order that the Plaintiff is entitled to vacant possession against the Defendants of the land claimed in the Originating Summons of 10th of October 1989 but that execution on this order is to be stayed until the 30th day of September 1992. However the Defendants must pay the Plaintiff's costs to be taxed if not agreed.

John E. Byrne
J U D G E

HBC0384J.89S