IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 0627 OF 1993

Between:

MOHAMMED SAFIAN KHAN
s/o Badiul Zama Khan
Plaintiff

- and -

ASHIA BIBI
d/o Karimulla
Defendant

Mr. T. Fa for Plaintiff
Mr. D. Sharma for Defendant

JUDGMENT

This is an application under Section 169 of the Land Transfer Act seeking an order for vacant possession of a portion of land over which the plaintiff alleges part of the defendant's house illegally encroaches.

More particularly, the plaintiff is the registered proprietor of land which is comprised within Lot 24 of Wainibuku Subdivision and, Nirzaman Khan, the original defendant, was an occupant and a son of the original owner of the adjoining Lot 25 of the Wainibuku Subdivision.

The action has its origins in a Notice to Quit dated 30th September 1993 which was hand delivered to the original defendant on the 6th of October 1993 and which expired on or about the 30th of October, 1993. On 9th December, 1993 the plaintiff's solicitors issued the present application before the Court and on 9th February 1994 the defendant acknowledged service by through his solicitors. Thereafter on 15th March 1994 the original defendant filed an affidavit opposing the application in which he denies illegally occupying the plaintiff's land and raising issues of estoppel and fraud.

For the sake of completeness it is necessary to refer briefly to the chronology of events that necessitated the adjournment of the action from time to time extending over the last 2 years. Firstly an adjournment of 6 months was granted to enable the defendant to pursue before the Registrar of Titles an application for a vesting order of the piece of land in dispute. Then the original defendant died and the action had to be adjourned to enable the plaintiff to reconstitute the action and then later to correct the name of the new defendant in the reconstituted action.

The action as finally reconstituted by consent order dated 6th October 1995 pits the plaintiff against Aisha Bibi the lawful widow of the original defendant.

The land in dispute is comprised within the boundaries of Crown Lease No. 1741 which was first registered in February 1949 and was originally owned by Abdul Hamid and then by the plaintiff's father from 1987 until the 29th of March 1989 when the property was transferred to the plaintiff.

The original defendant, Nirzaman Khan, in his affidavit opposing the application traces the devolution of the two Lots through various predecessors in title and refers to his family's continuous undisturbed occupation of the disputed piece of land 'since 1949' and to the plaintiff's father's awareness and acceptance of the defendant's encroaching house. 

In the result the original defendant deposes that the plaintiff is now 'estopped from laying claim to the disputed area' and further, that in doing so, the plaintiff is 'trying to perpetrate a fraud'. There was also annexed to the original defendant's affidavit, a copy of a 'drawing' which appears to indicate that the defendant's house is built within the 'assumed' boundaries of Lot 25 (whatever that may mean).

The plaintiff in his affidavit in reply denies however, that his father and immediate predecessor in title had ever agreed to or accepted the encroachment and indeed had 'requested the defendant to pull out the house after he (the father) purchased the property in 1987'. As for the annexed 'drawing', the plaintiff for his part, produced a plan prepared by a registered surveyor which shows that the eastern boundary of the plaintiff's Lot 24, runs through a portion of the defendant's house. Needless to say the plaintiff's ownership of Lot 24 (i.e. since 1987) disabled him from commenting on matters that arose prior to then.

In passing I would only observe that neither party has referred to the effect (if any) that the deeming provisions of Sections 151, 152 and 153 of the Land Transfer Act may have on their respective claims.

In his oral submissions, learned counsel for the defendant sought to raise 'proprietory estoppel'; 'adverse possession'; the existence of a pending 'application for a vesting order' and 'fraud'. All or any one of these grounds, if proved to the Court's satisfaction, would be sufficient cause for the dismissal of the plaintiff's summary application.

I remind myself that the statutory burden of satisfying the Court rests fairly and squarely upon the defendant to prove or establish a right to possession of the disputed land.

In this regard despite the production of what appears to be an unstamped copy of an 'application for a vesting order' under Section 78 of the Land Transfer Act, there is no evidence produced that the same has been accepted or advertised by the Registrar of Titles in terms of Section 80 of the Act nor, having regard to the fact that the land in question is undoubtedly "owned by the Crown", does the defendant's application have any real possibility of succeeding on that ground. [See: Section 90(a)]. No cause has been shown on this ground.

As for the defendant's claim based on 'adverse possession' the applicable law is to be found in the Real Property Limitation Acts (Imp) of 1833 and 1874 the effect of which was described by the Fiji Court of Appeal in Lee Bow Yiu v. Patel and Anor. 5 F.L.R. 62 at 64 when it said: 

"Under the Real Property Limitation Acts as in force in Fiji adverse possession for an uninterrupted period of 12 years prevents the registered proprietor of the land from making an entry or distress, or bringing an action or suit to recover any land, against the person in adverse possession." (my underlining)

In this instance even accepting that the defendant's possession of the disputed portion of the plaintiff's leasehold was 'actual, open, exclusive and continuous', the fact remains that as against the plaintiff and his immediate predecessor in title, such possession falls well-short of the required statutory minimum period of 12 years. Needless to say I do not accept that the defendant's possession can be said to be 'adverse' to the plaintiff until such time as the plaintiff became the registered lessee of the land.

It may be that the defendant's occupation might be sufficient to support a claim for 'adverse possession' against Abdul Hamid, the original lessee of Lot 24, had the necessary application been made under Section 77(1) of the Act, but in the absence of such application, the title of the plaintiff must in my view, be considered paramount and indefeasible (See: Sections 39, 40 & 42 of the Land Transfer Act).

Next I turn to 'proprietary estoppel'. In this regard the submission of learned counsel for the defendant is to the effect that the plaintiff has always been aware of the defendant's encroachment over part of Lot 24 and, since 1989, the plaintiff has made no attempt to evict the defendant.

I cannot accept however that mere inaction by a largely absentee owner, where there exists no legal duty to act, can give rise to an 'equitable estoppel' albeit that such inaction has lasted over 5 years. Furthermore this was not a situation or circumstance that arose during the ownership of the plaintiff nor is it one which he might be said to have encouraged, indeed, the defendant's encroachment (by his own admission) existed long before the plaintiff (or his father) ever became the registered proprietor of Lot 24.

In other words the defendant's encroachment on the plaintiff's land was by 1987 a 'fait accompli' which the defendant had never sought to 'regularise' or 'protect' at any time until the plaintiff's application.

In McBean v. Howey (1958) N.Z.L.R. 25 where the defendant had acquiesced in and encouraged the plaintiff (the owner of an adjoining property), in the construction of a driveway across a corner of the defendant's land and which the plaintiff used for 9 years but which the defendant subsequently sought to revoke in a two month's Notice to Quit, Barrowclough C.J. in rejecting the plaintiff's claim for a permanent injunction said at p.30:

"If the plaintiffs are to succeed on this branch of the case they must show that (the defendant) would be acting fraudulently and unconscionably if he exercised the legal right of revocation ... An allegation of fraud must be supported by cogent evidence and such evidence is not before me. I am not unsympathetic with the plaintiffs. It is unfortunate for them to have built a garage to which they now have no access. Their misfortune arises only out of their foolish neglect in not seeking legal advice in 1948. It does not arise out of anything which (the defendant) fraudulently did, or reframed from doing, when work and money was being expended by (the plaintiff), and I can find no equity which justifies the Court in restraining (the defendant) from exercising his legal right."

Similarly in this case even accepting the evidence deposed by the defendant, no 'equity' can possibly arise in the circumstances which would render the plaintiffs action either fraudulent or unconscionable.

Finally I turn to the allegation of 'fraud' which is to the effect that the plaintiff's father when he purchased Lot 24 in 1987, was not only aware of the existence of the defendant's encroachment but the purchase price paid by the defendant's father "excluded the area on which (the defendant's) dwelling house is situated.

I confess that this assertion appears somewhat far-fetched when one considers that the land in question is comprised within a 'protected lease' of Crown land and any alienation, sale or transfer is necessarily subject to the written consent of the Director of Lands (See: Clause 2 of the plaintiff's Lease and Section 13 Crown Lands Act).

No such 'written consent' has been deposed to or produced by the defendant and accordingly, any occupation of any part of the plaintiff's leasehold by the defendant of whatever duration, must be considered 'null and void' and incapable of being enforced as a matter of equity.

There will be order for vacant possession granted to the plaintiff with execution stayed for 3 months from the date of service of the order so as to enable the defendant to voluntarily remove the offending part of his house from the plaintiff's leasehold.

(D.V. Fatiaki)
JUDGE
At Suva,
6th September, 1996.
HBC0627J.93S