Sadiq v Housing Authority [1994] FJHC 71; Hbc0445d.93s (28 June 1994)

IN THE HIGH COURT OF FIJI
(AT SUVA
CIVIL JURISDICTION

ACTION NO. 445 OF 1993

BETWEEN:

MOHAMMED SADIQ
(f/n Mohammed Hanif
of Lot 3, Kalabo, Nasinu
Plaintiff

AND

HOUSING AUTHORITY
a statutory body duly constituted under the provisions
of the Housing Act and having its
Head Office at Valelevu, Suva
Defendant

A N D

ACTION NO. 593 OF 1993

BETWEEN:

SHAMSHER ALI
(f/n Imtaz Ali) and
ANTHONY ALI
(f/n) Shamsher Ali)
of Kalabo, Suva, Storekeeper and Company
Director respectively
Plaintiffs

AND

MOHAMMED SADIQ
(f/n Mohammed Hanif) of
Lot 4 on D.P. 6506, Kalabo
Defendant

S. Sharma: For the Applicant
V. Maharaj: For the Respondents

Date of Hearing: 3rd June 1994
Date of Interlocutory Judgment: 28th June 1994

INTERLOCUTORY JUDGMENT

This is an application for consolidation of two actions under Order 4 of the Rules of the High Court 1988. Order 4 reads thus:

"1. Where two or more causes or matters are pending, then, if it appears to the Court -

(a) that some common question of law or fact arises in both or all of them, or

(b) that the rights to relief claimed therein are in respect of or arise out of the same transaction or series of transactions, or

(c) that for some other reason it is desirable to make an order under this rule,

the Court may order those causes or matters to be consolidated on such terms as it thinks just or may order them to be tried at the same time or one immediately after another or may order any of them to be stayed until after the determination of any other of them."

The Applicant Mohammed Sadiq is Plaintiff in Action No. 445 of 1993, the Writ in which was issued on the 18th of August 1993. In the Statement of Claim annexed to the Writ he alleges that the Defendant is and was at all material times the registered proprietor of a piece of land known as Lot 4 on D.P.6506 at Kalabo, Nasinu on Lease No. 2282.47 upon which the Plaintiff has constructed a residential dwelling.

The Plaintiff claims that he has been in lawful occupation of the premises as the tenant and equitable purchaser of them from about 1950.

His Statement of Claim contains twenty paragraphs but the gravamen of his claim is that the Housing Authority by oral representations or conduct led the Applicant to belief that he would have first option to purchase the property in the event of any allocation or sale thereof.

Acting on the alleged promise of the Housing Authority the Applicant states that he proceeded to have substantial maintenance works and improvements done on the premises.

Further in relying on the promises of the Housing Authority the Applicant continued to occupy and reside on the property.

On 5th of November 1992 the Housing Authority caused a Notice to Quit to issue against the Applicant requiring him to give vacant possession of the premises.

The Plaintiff protested the validity of the Notice on the ground of his alleged interest at law and in equity in the property and as a result the Applicant claims to have suffered loss and damage from the Housing Authority.

He seeks a number of declarations against the Authority and an injunction restraining the Authority from evicting him from the land until the hearing of the action.

Four of the declarations which the Applicant seeks are:

(i) That there is a valid promise between himself and the Housing Authority together with a right to option or an associated equity to lease and purchase the land.

(ii) That there has been a breach of promise by the Housing Authority in not conferring the option to lease and purchase in favour of the Applicant.

(iii) That the Authority holds the premises in trust for the Applicant.

(iv) That the Authority's promise ought to be specifically performed and executed by the Authority.

A defence has been filed in Action No. 445 in which the Housing Authority does not admit that it is and was at all material times the registered proprietor of the land in question and further says that the registered lease No. 335252 in respect of the land in issue has been registered in the names of SHAUKAT ALI AND ANTHONY ALI. It appears to be common ground that Shaukat Ali and Anthony Ali are the Plaintiffs in Action No. 593 of 1993 in which the Applicant is the Defendant.

The Housing Authority claims that the Applicant is illegally occupying the land as a squatter and denies making any promises or representations to the Applicant as he alleges.

By way of further defence the Housing Authority says that Lot 4 on D.P.6506 has been properly and legally allocated by a registered lease to Shaukat Ali and Anthony Ali and that as a result that they are indefeasible proprietors of the premises.

A reply was delivered by the Applicant on the 18th of November 1993 but since then, apart from the present application, no further proceedings have been taken in the action.

On 5th of November 1993 the Plaintiff in Action No. 593 issued a Summons against the Defendant Mohammed Sadiq to show cause why he should not give them vacant possession of the land which he is occupying.

In an affidavit in support of the Summons Anthony Ali states that he has the authority of his father Shamsher Ali to swear the affidavit. Anthony Ali claims that he and his father are the registered lessees of the land under a registered Sub-lease dated 12th of March 1993 but effective from the 26th of March 1991 for a term of some 92 years.

Mr. Ali continues that the Defendant Mohammed Sadiq is presently occupying the land and has erected on it an illegal lean-to-house without any licence or right from Mr. Ali and his father. The Alis therefore claim that the Applicant Sadiq is a trespasser on the land. Mr. Ali states neither he nor his father ever accepted any rent from the Applicant for the land which he occupies nor have they authorised anyone else to collect rent from Mr. Sadiq for them.

On the 30th of July 1993 the Plaintiffs Ali served a Notice to Quit on the Applicant Sadiq requiring him to give them vacant possession within seven days.

In response to this notice Mr. Sadiq has sworn an Affidavit in Reply in which he broadly repeats the allegations made in his Statement of Claim against the Housing Authority. This affidavit was sworn on the 31st of January 1994 in support of the Notice of Motion of the same date issued by Mr. Sadiq which is presently before me and which seeks orders for consolidation of the two actions. It is important to note at the outset the date on which the two Notices to Quit were given - that by the Housing Authority to Mr. Sadiq on the 5th of November 1992 and by the Plaintiff in Action No. 592 against Mr. Sadiq on the 30th of July 1993. It is also relevant in my view to note the date on which the Applicant issued his Writ in Action No. 445 namely the 18th of August 1993.

On behalf of the Applicant Mr. Sharma submits that it is desirable in the interest of justice that the two actions be consolidated on the grounds that

(a) some common question of law or fact arises in them, and

(b) that the rights to relief claimed in both actions arise out of the same transaction or series of transactions.

In reply counsel for the Plaintiffs Ali submits that there is no common nexus between the two actions which would justify their consolidation. Counsel submits that the only common nexus is the property in question and not the parties.

Mr. Maharaj relies particularly on Sections 39 and 40 of the Land Transfer Act Cap. 131 and Section 59 of the Indemnity Guarantee and Bailment Act Cap. 232 and cites a number of cases to support his contention.

Summarised, Section 39 of the Land Transfer Act guarantees the paramountcy of the registered proprietor of any estate or interest in land the subject of the Act, except in the case of fraud, against any other persons.

Under Section 40, except in the case of fraud, no persons dealing with or taking a transfer from the proprietor of any estate or interest in land covered by the Act shall be required to enquire or ascertain the circumstances in which any previous proprietor of the land was registered.

The effect of Section 40 may be conveniently summed up by saying that a purchaser for value without notice under the Act acquires a good title to the land which he buys or leases.

Under Section 59 of the Indemnity, Guarantee and Bailment Act Cap. 232 no action shall be brought upon any contract or sale of land, or any interest in them unless the agreement on which the action is to be brought or some memorandum thereof is in writing and signed by the party to be charged therewith.

The Plaintiffs Ali claim that by virtue of these provisions they have good title against the Applicant and that if he has any remedy at all in law this is in damages against the Housing Authority.

Their counsel submits that if Mr. Sadiq was genuine and had the interest which he claims in the land, as soon as he received the Notice to Quit from the Housing Authority he could have lodged a Caveat to protect his interest but he did not do so. Rather he waited some nine months until the 18th of August 1993 when he issued his Writ in Action No. 445.

It would be wrong for me at this stage to attempt to consider the merits of the respective claims by the parties but certainly I believe it is now clear law that in the absence of fraud the Plaintiffs Ali must be taken to have an indefeasible title to their land against Mr. Sadiq whose claims sound in equity and appear to allege some form of promissory or proprietary estoppel against the Housing Authority.

On the other hand the Plaintiffs in Action No. 593 allege that at all times they acted in good faith and any dispute which Mr. Sadiq may have with the Housing Authority is no concern of theirs. It may well transpire that Mr. Sadiq has a good claim for damages against the Housing Authority; only time will tell. However as in all applications for consolidation the decision whether or not to order consolidation is entirely in the discretion of the Court. Considering the evidence before me I am not satisfied that a common question of law or fact arises in these proceedings. In Action No. 445 the Applicant is in fact alleging a breach of promise by the Housing Authority. If he can establish his claim at trial he will be entitled to an award of damages against the Authority.

By contrast in Action No. 593 the Plaintiffs are alleging simply a right to obtain vacant possession from a person who, to all appearances at least, is a trespasser or squatter.

I am thus not satisfied that there is any nexus between the two applications to justify their consolidation. I therefore dismiss the Notice of Motion of the 31st of January 1994 and order the Applicant Mohammed Sadiq to pay the costs of the Respondents Shamsher Ali and Anthony Ali.

JOHN E. BYRNE
J U D G E

Legislation referred to in judgment:

(1) Indemnity, Guarantee and Bailment Act Cap. 232.
(2) Land Transfer Act Cap. 131.

Authorities referred to in argument:

(1) Supreme Court Practice 1988.

(2) Housing Authority v. Daud Khan & 14 Ors. H.C. Civil Action Nos. 0090/94 - 0104/94 Unreported Judgment of Fatiaki J. of 10th June 1994.

(3) Ram Devi v. Satya Nand Sharma & Maya Wati F.C.A. Civil Appeal No. 46/85.

(4) Damodran Nair v. Azam Ali & Gaffar Ali - High Court Action No. 485/95 - Unreported Judgment of Scott J.

(5) Darshan Singh v. Puran Singh F.C.A. Civil Appeal No. 22/87.

HBC0445D.93S