Housing Authority v Khan [1994] FJHC 58; Hbc0090d.94s (10 June 1994)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NOS. HBC 0090/94 - 0104/94

Between:

HOUSING AUTHORITY
Plaintiff

-and-

1. DAUD KHAN
2. RAM SHANKAR
3. NARENDRA PRASAD
4. SHANTI SAVITRI
5. SHIU NARAYAN
6. RAM KUAR
7. NAND KISHORE
8. SAVITRI DEVI
9. BIRENDRA KUMAR
10. AIYUB KHAN
11. RAJENDRA PRASAD
12. SHIU PRASAD
13. HARI RAM
14. LAKSHMIA RAJU
15. KISSUN LAL
Defendants

Mr. V. Maharaj for the Plaintiff
Mr. H. M. Patel for the Defendants

RULING

This is yet another case in which the Housing Authority plans to develop a residential subdivision of land at Manikoso, Nasinu but has been prevented from doing so because of the presence of the defendants on the land. In all there are some 15 named defendants and although there is a separate application in respect of each of them, there is but one title document and it is therefore convenient to deal with the matter in a single ruling.

The application in these summary proceedings is brought pursuant to Section 169 of the Land Transfer Act (Cap 131) requiring each of the defendants "to show cause (why he/she) should not give up possession (of the land) to the Housing Authority..." which is the "last registered proprietor of the land" under a Crown Freehold Lease No: 296873 dated the 4th of February 1991.

It is the plaintiff authority's case that each of the named defendants occupies a dwelling house which was erected within the bounds of its leasehold "without a licence, right, or consent (of the authority) and is therefore a trespasser at law." Furthermore none of the named defendants has paid any rent to the authority and each of them has been served with a proper 'Notice to Quit' sometime in June 1993.

It is common ground that despite having received the notices none of the defendants has vacated the land and all continue to occupy their respective home sites within the authority's leasehold.

More particularly I note that the location of the defendants' existing houses falls in almost all instances across the boundaries of 2 or more lots in the proposed subdivision and in some instances on a proposed road or accessway.

Accordingly if the proposed subdivision is to proceed unaltered then there can be no question but that the defendant's dwelling houses must be removed from the land. In this regard and in order to facilitate the moving of the defendants the Housing Authority to its credit, has specifically acquired an adjacent hectare of native land "...(to) be used solely for temporary resettlement of squatter families on the Housing Authority's ... lease area."

The provision of an alternative resettlement site however is no substitute if the defendants can establish to the satisfaction of the court a right to possession of the land that they presently occupy. I turn them to consider that issue.

In this latter regard except for the 4 named defendants in Civil Action Nos: HBC 093/94; 094/94; 0103/94 and 0104/94 who have not filed any affidavit, the remaining 11 defendants have each filed an affidavit in an attempt to "prove a right to the possession of the land."

In particular the defendant in Civil Action No. HBC 090/94, Daud Khan aka Durga f/n Tota Ram who describes himself as a Shipping Manager claims in his affidavit "... that I obtained a verbal consent from the Director of Lands Department in 1986 and after that I built a dwelling house valued at $30,000."

It is immediately obvious from the above that no responsible official in the Lands Department has been named nor are any details provided as to the nature of the 'verbal consent' but in any event the consent was given in 1986 long before the plaintiff authority came onto the scene so-to-speak and there are no specific claims or allegations made against the Housing Authority.

In rejecting a somewhat similar claim in Attorney General v. Hardeo Shandil 20 FLR 93 Tuivaga J. (as he then was) said at p 94:

"The defendant claims that he occupied the land because of certain oral representations made to him by a staff of the Lands Department. He did not specify the nature of these alleged representations. They have been unequivocally denied by the Director of Lands. They appear too nebulous for this Court to attach any weight to them."

In the circumstances in the absence of any written memorandum or note evidencing such consent, it is very doubtful that the defendant would be able to enforce the 'verbal consent' granted him even against the Director of Lands, but in any event, in the absence of 'fraud' (which is nowhere alleged) on the part of the Housing Authority, its title to the land is 'indefeasible' and cannot now be challenged, much less on the basis of an unknown unrelated third party's statement.

In my view the defendant's claim may be categorised as that of a 'bare licensee' with a right to occupy the land without acquiring an estate or interest in it and, being gratuitous, was and is revocable at any time and by any transfer of assignment of the land over which the licence was granted.

In Wallis v. Harrison (1838) 51 RR 715, Lord Abinger C.B. in rejecting the plea of license raised in that case said at p 719:

"... a mere parol license to enjoy an easement on the land of another does not bind the grantor, after he has transferred his interest and possession in the land to a third person. I never heard it supposed that because a man out of kindness to a neighbour allows him to pass over his land, the transferee of that land is bound to do so likewise. But it is said, that the defendant should have had notice of the transfer. That is new law to me. A person is bound to know who is the owner of the land upon which he does that which, prima facie, is a trespass."

In this case not only was the defendant's 'bare licence' revoked upon the transfer of the land to the Housing Authority but whatever remnants of a licence survived such transfer was clearly and unequivocally extinguished by the authority's written Notice to Quit.

Then 4 defendants in Civil Action Nos: HBC 095/94; 096/94; 0101/94 and 0102/94 have each sworn affidavits claiming a legal right to occupy the land on the basis of a written 'tenancy-at-will' granted by the Director of Lands either to the defendant personally or his predecessor in occupation. These defendants maybe conveniently described as Ram Kuar and all persons claiming under her 'title'.

In this regard it is common ground that on the 28th of July 1969 the Director of Lands authorised Ram Kuar f/n Ludhur in writing, to occupy 2 acres of Crown Land (subsequently comprised within the plaintiff authority's leasehold)-

"as a tenant-at-will on the following terms and conditions:-

Purpose: Agricultural

Conditions: (as relevant)

(1) The right to occupy and use the land is not transferable.

(2) The lands described may be used solely for agricultural purposes and no buildings whatsoever may be erected thereon after the date hereof.

(4) This letter shall not operate to create a tenancy in respect of the said lands and, you may be required to vacate the land on receipt of notice to that effect."

In this latter regard there is annexed to the affidavit of Penioni Bulu (dated 2nd June '94) a notice dated 18th February, 1971 addressed to the defendant, cancelling her 'tenancy-at-will' and requiring her "...to complete the vacation of the land within six months of the date of this notice."

Learned counsel however across the bar table stated that the defendant denies receiving any such cancellation notice and it is argued that this alone raises a triable issue.

Recently in Ram Narayan v. Shiu Prasad Civil Action No. 13 of 1993 (unreported) Scott J. in rejecting a similar denial said at p 4 of his judgment:

"The mere denial of having received a notice to quit is a simple and easy way of frustrating proceedings brought under Section 169 (c) and the court will be exceptionally vigilant to ensure that such denial is advanced bona fide."

In any event I cannot agree with counsel's submissions.

In the first place there has been a clear breach of Condition 2 (above) in the erection of no less than 4 dwelling houses on the land. Secondly, in so far as her 3 sons' houses are concerned, their occupation of the land is in my view in clear breach of the terms of Condition 1 (above).

Furthermore it should be noted that Condition 4 (above) does not expressly require the cancellation notice to be given by the Director of Lands nor is there any suggestion that the plaintiff authority was a party to or even knew of the existence of the defendant's 'tenancy-at-will.'

In the circumstances and without necessarily accepting the defendant's assertion that her "tenancy-at-will has never been cancelled", I am satisfied that the authority's Notice to Quit (the receipt of which is not denied) was sufficiently wide in its terms as to amount to a valid and effective notice of the cancellation and/or revocation of Ram Kuar's "tenancy-at-will" in the absence of any suggestion of 'fraud'.

In any event it is trite that a 'tenancy-at-will' is impliedly determined by the landlord when he does any act which is inconsistent with the continuance of the tenancy such as the granting of a lease over the land. This was decided as long ago as 1861 by the Privy Council in Hogan v. Hand 134 RR 57 where it was held:

"The granting of a lease to a third party by the lessor of a tenant at will is a determination of the tenancy at will."

In light of the above I have no hesitation in finding that these 4 defendants have failed to raise either a triable issue or established "a right to the possession of the land" as required in terms of Section 172 of the Land Transfer Act (Cap 131).

Finally I turn to the remaining 6 defendants in Civil Action Nos: 091/94; 092/94; 094/94; 097/94; 098/94 and 0100/94. Each of these defendants deposed to paying a sum of money ranging from $50 to $500 in 1988 to a named employee of the plaintiff authority who is alleged to have been "the person in charge of the land in question", in return for a promise that a proper registered lease for the land would be provided to them.

No receipts have been exhibited by any of the defendants and the plaintiff authority denies the existence of any official accounting records to support the receipt of such payments by the authority.

Furthermore the affidavit of the authority's Marketing Director categorically denied any agreement to lease the land to the defendants or accepting any rent from the defendants and more particularly denied authorising anyone to do so on its behalf. It is accepted however that the named employee was employed by the plaintiff authority at the relevant time but had since retired in early 1992.

In the absence of an affidavit from the former named employee of the authority learned counsel for these 6 defendants submits that there is some prima facie evidence to raise some form of equitable or proprietary estoppel. Again I cannot agree.

In the first place the payments and promises (assuming they were made) occurred "... sometimes in 1988" which is some 3 years before the Housing Authority accepted and became the legally registered lessee of the land albeit that the lease commenced on the 1st of August 1987. In the circumstances there is a very real possibility that the named employee of the authority had taken advantage of the plight of these defendants and fraudulently obtained from them the various sums deposed unknown to his employer. In such an event no estoppel could possibly arise.

Secondly, Section 59 (d) of the Indemnity, Bailment and Guarantee Act (Cap 232) provides:

"59. No action shall be brought -

(d) Upon any contract or sale of land, tenements or hereditaments or any interest in or concerning them;

unless the agreement upon which such action is to be brought or some memorandum or note thereof is in writing and signed by the party to be charged therewith or some other person thereunto by him lawfully authorised."

In the absence of any written note or memorandum evidencing either the promise or payment it is unlikely that the defendants could enforce the alleged promise to provide them with "a proper registered lease" but in any event before such a 'promise' could be fulfilled the proposed subdivision work would have to be completed and that in turn necessitates the defendants vacating the subject land.

Finally having regard to the rather indeterminate nature of the authority's legal title to the land at the relevant time; the absence of any documentary evidence; the non-exclusive nature of the defendants' possession of the land; the nebullous nature of the 'promise' allegedly made; and the non-payment of any form of rental to the plaintiff authority by the defendants, I am firmly of the view assuming that the defendants are able to prove their various assertions that, at best, each had a 'contractual licence' to occupy the land in question which was revocable on reasonable notice.

In this latter regard I am satisfied that the authority's Notice to Quit in clear and unequivocal terms revoked each defendant's 'contractual licence' and the fact that the defendants were offered an alternative resettlement site and have had almost a full year since the service of the notices upon them (which is not denied) to vacate the land is, in my view, a reasonable time within which to comply with the notice.

In the circumstances these 6 defendants also have failed to satisfy me that they have "a right to the possession of the land"

In conclusion I should point out that although undoubtedly these 15 defendants will suffer hardship and some dislocation as a result of the court's orders I am comforted in the knowledge that the Housing Authority's proposed housing estate will when completed, benefit a very large number of families (including the defendants should they so desire a plot in the proposed subdivision).

There will be orders for vacant possession issued against each of the above-named defendants in favour of the Housing Authority with execution stayed for a period of two weeks after service of the orders.

D. V. Fatiaki
JUDGE

At Suva
10th June 1994

HBC0090D.94S