Ocean Shores Estates Ltd v Karavaki [1997] FJHC 29; Hbc0468j.96s (6 March 1997)

Fiji Islands - Ocean Shores Estates Ltd v Karavaki - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. 468 OF 1996

IN THE MATTER of an application for possession of Land
under Section 169 of the Land Transfer Act, 1971

BETWEEN:

OCEAN SHORES ESTATES LIMITED

Plaintiff

AND:

1. KALIVATI KARAVAKI

2. ISAKE RAKURO

3. MOSESE RATUMAITAVUKI

Defendants

Mr. T. Fa for the Plaintiff

Mr. T. Savu for the Defendants

JUDGMENT

This is an application under s169 of the Land Transfer Act Cap.131 (the 'Act') fornt possession of part of thof the property comprised in Certificate of Title No. 18731 being Lot 2 on DP 4515 comprising 7 acres 2 roods 11 perches situate at 29 Wairua Road, Tamavua in the District of Suva in the Island of Vitilevu (the 'property') of the which the Plaintiff is the registered proprietor.

The plaintiff says that the defendants have been and are presently trespassi the property despite noticnotice dated 19 June 1996 to them to vacate and deliver up vacant possession.

It says that they are in unlaoccupation of the property and that they have no "legal right to remain in possessisession".

In his Affidavit in ReplKALIVATI KALAVAKI (the first defendant) for himself and his two sons the second and thid third defendants swore, inter alia, that he has a legal right to remain in possession as he was "invited by the previous registered proprietors namely Sir Hugh and Lady Ragg to build" his house on the said property. He said that he first began working for Sir Hugh on 21 November 1949 as a gardener after his father had retired as his gardener. Then sometime in 1964 Sir Hugh invited him to build his house on the property since he and his wife worked for him. His wife stopped working in 1974 when Lady Ragg died. On 12 November 1964 he cleared the land and built a house on a portion of the property and moved into it on 2 January 1965. He says that because they were promised by Sir Hugh that he could build and stay "forever" on this piece of land they have made this their place of residence for some 47 years now.

Since 1978 the D1 has been working for Marine Shipping. He said that in 1987 a simipplication as the present oent one was made to Court by the Plaintiff but D1 did not hear of its outcome.

For the above reason the defts are resisting the application.

Consideration of the issue

The Plaintiff is, under s169 of the Act, entitled to institue present proceedings as the last registered proprietor of r of the property.

As required under s172 of the Act the onus is on the dents to "show cause" why they are refusing sing to "give possession of such land". If, as the said section provides, they "prove to the satisfaction of the judge a right to the possession of the land, the judge shall dismiss the summons with costs against the proprietor, mortgagee or lessee or he may make any order and impose any terms he may think fit."

Briefly, the main ground for refusing to give possession is that D1 was invited to come on the property by Sir Hugh for whom D1 and his wife worked and the children (D1 and D2) grew up there and that they were promised they could live there for ever and hence they have been there for 47 years living in their modern small two bedroom house of wood and iron construction on a small piece of land on the property.

The issue now for the Court is whether the defendants have shown cause as required under.

There is no evidence in writing before me to show that Sir Hugh Ragg was ever the registered proprietor of the property. The Certificate of Title No. 18731 was first issued to IRVING INVESTMENT (FIJI) LTD, TABU SORO (FIJI) LIMITED, KATHLEEN PETRIE CLARK and ELIMA PETRIE SYKES on 21 May 1979. Then on 20 May 1986 it was transferred to the Plaintiff Company in this action. There is no evidence to indicate that Sir Hugh had anything to do with the first transfer to IRVING INVESTMENT & OTHERS. If D1 was employed by Sir Hugh then employment ceased with his death or when he disposed of the property (if this property belonged to him). According to D1 himself he started working for Marine Department in 1978. It could be that Sir Hugh had terminated his employment when the property was sold on 21 May 1979.

After the transfer of the property to the Plaintiff, an action to evict D1 was commenced vidently it was not pursuedrsued and since then no action was taken to evict D1 until this action was instituted. The D1 did not take the initiative of strengthening his position when the Plaintiffs acquired the property. The D1 was brought on to the land by Sir Hugh but there is nothing to show in writing what arrangement there was between Sir Hugh and D1. Presumably his employment ceased when the property was sold.

The question that looms large on the facts of this case is how did D1 manage to stay on the land o long without being evictevicted long before? Is it a case of proprietary estoppel? This doctrine is stated thus in HANDBURY AND MAUDSLEY MODERN EQUITY 11th Ed. P.736-737:

"This doctrine is applicable where one party know encourages another to act, act, or acquiesces in the other's actions, to his detriment and in infringement of the first party's rights. He will be unable to complain later about the infringement, and may indeed be required to make good the expectation which he encouraged the other party to rely on. Unlike other estoppels, therefore, this doctrine may, in some circumstances, create a claim and an entitlement to positive proprietary rights; in others, it can operate negatively, or can produce a compromise situation appropriate to the particular circumstances."

It is further stated at p.737 ibid that "where a man sufferther to build on this ground, without setting up a right tiht till afterwards, the Court will oblige the owner to permit the person building it to enjoy it quietly" (EAST INDIA CO v VINCENT (1740) 2 Atk 83; JACKSON v CATOR (1800) 5 Ves. 688). It is also mentioned there at p.737 that:

"The most extreme cases are those wa non-owner, in reliance upce upon a gratuitous promise of a gift of the land, has built on the land. Clearly, it would be wrong to allow him to be turned out. The court has on occasion ordered a conveyance of the land. On other occasions, the non-owner has been given a lien on the land for his expenditure; or compensation for the value of the improvements; or awarded the improved land on payment of a reasonable price for the site, or has been given protection from eviction without obtaining a proprietary interest in the land."

While on this aspect of the matter I would like to refer to the Fiji case of BRUCE DUNCAN GRAINGWLOR v TIMOCI DUAIBE (2u> (22 FLR P.134) where the facts were slightly different from the present case, it was held as follows:

"Although there was no evidence upon which an actual tenancy could be inferred, the defendant did have a licence to remain on the land. This licence was not a bare licence but one protected by equity as there had been a contract made in 1962 to allow him to remain. The plaintiff was, therefore, estopped from resiling from the compromise reached in the Magistrate's Court."

I have dealt with the principle of proprietary estoppel and to LAWLOR'S case (supra) et cetera merely to show that D1 has shown cause as required under s172 of the Act and that there is a lurking doubt that he may have a claim to remain in possession. There is therefore an arguable case and that a proper resolution cannot be had without evidence being adduced.

Once the defendant has shown cause, section 172 provides that "the judge shall dismiss the summons with costs against the proprietor, mortgagee or lessor or he may make any order and impose any terms he may think fit: ..." (underlining mine for emphasis). Speaking of these underlined words the Fiji Court of Appeal in the case of AZMAT ALI s/o Akbar Ali and MOHAMMED JALIL s/o Mohammed Hanif (C.A. No. 41/81 cyclostyled judgment) said:

"These woust apply, though the person appearing has failed to satisfatisfy the judge, and indeed are often applied when the judge decides that an open court hearing is required. We read the section as empowering the judge to make any order that justice and the circumstances require. There is accordingly nothing in section 172 which requires an automatic order for possession unless "cause" is immediately shown."

I have decided that in the mstances of this case an open court hearing is required in this same action. The provisionssions of Or 28 r.9 of the High Court Rules (i.e. continuation of proceedings as if cause or matter begun by writ) could be invoked in this situation.

It is therefore orderat continuation of these proceedings be in open court but before a hearing date is assignedigned I would like to hear counsel on the applicability of Or 28 r.9 in this case and for directions to be given by Court.

The costs of the Summons is to be costs in the c

D. Pathik

Judge

p class=MsoNormal stal style="margin-top: 0; margin-bottom: 0"> At Suva

6 March 1997

Hbc0468j.96s