Parvati v Kali [2002] FJHC 301; HBC0378.1999L (18 June 2002)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0378 OF 1999L

BETWEEN:

PARVATI (father’s name Yagambaran) of
Madhuvani, Ra, Cultivator, but presently
temporarily residing in Suva
Plaintiff

AND

RAM KALI father’s name not known to be
Plaintiff and widow/wife of the late Mani
Ram) MOTI RAM, AND BABUN BABU
RAM (both sons of the late Mani Ram) all
of Madhuvani, Ra, Occupations unknown to the Plaintiff
Defendants

Mr. R. Gordon for the Plaintiff
Mr. M.K. Sahu Khan for the 1st and 2nd named Defendants
No appearance for 3rd named Defendant

Date of Hearing and Judgment: 12 June 2001

Date of Reasons : 18 June 2002

REASONS FOR JUDGMENT

The Plaintiff sold his lease over some freehold land in Ra to Mani Ram. The sale was set out in an agreement of 7 December 1992. But the Plaintiff said Mani Ram failed to abide by the terms and conditions of that agreement and so on or about 28

April 1995 the Plaintiff terminated or rescinded the agreement. He asked Mani Ram to vacate the land. Mani Ram died on 27 February 1998. The Defendants are Mani Ram’s widow and two of his sons who remain on the property. The Plaintiff seeks to regain possession of her land.

The Plaintiff therefore came to court with a Summons for Ejectment of 16th October 1999. This was a Summons issued under the provisions of Section 169 of the Land Transfer Act Cap. 131, and it was returnable on 12th November 1999. There was no judge to hear it at Lautoka on that day. When the matter did come before a judge, defence counsel did not attend. Conflicting instructions had been issued from the registry, so that when judgment was given in default, proceedings had to be taken to have it set aside.

The hearing of this application was held on 12 June 2001. On that date, having heard both counsel, I made an order for vacant possession suspended for 6 weeks, and summarily assessed costs for the Plaintiff at $350. I gave a short judgment stating I should provide more detailed reasons later upon request. I do so now.

The Plaintiff relied on two affidavits in support, both sworn by herself, on 6th October 1999 and 10th August 2000 respectively. The last was in reply to an affidavit of Moti Ram, the 2nd named Defendant, sworn on 22nd November 1999, which he said was filed on behalf of himself and the 1st named Defendant only.

In seeking the exercise of the High Court’s special jurisdiction under Part XXIV of the Act the applicant must satisfy certain requirements. In this case the Plaintiff qualifies as the last registered proprietor of the land [Section 169 (a)]. The Plaintiff holds a registered 30 year lease of the freehold from the Then India Sanmarga Ikya Sangam. Sufficient particulars of the land have been given in both the Summons and the Plaintiff’s affidavit. The onus then shifts to the Defendant occupants to show cause why possession should not be ordered [Section 172], to the standard “if he proves to the satisfaction of the judge a right to the possession of the land”.

The first issue raised in defence counsel’s submission is that there is no evidence of rescission of the agreement. The Plaintiff said in her first affidavit that “Mani Ram failed to honour and/or abide by and or fulfill the terms and conditions of the said agreement..........” She does not state the term or condition, or the conduct of Mani Ram that she says brought him into breach with that term or condition. This might have been set out fruitfully in the Plaintiff’s affidavit. But Mani Ram is not the Defendant here, and such omission cannot shift the burden of proof from the shoulders of the Defendants to establish their rights of occupancy to the land, nor does it diminish the need for the Defendants to prove their case. What evidence have they to counter that of the Plaintiff on the termination or rescission? All Moti Ram, the 2nd named Defendant, can say is “To the best of our knowledge, information and belief the agreement is still subsisting and valid.”

Moti Ram claims also that there was no notice to quit served, and in the alternative, if it were issued and served, it was defective, and any way it has since been waived. The Defendants, as distinct from Mani Ram who made the agreement, have not established any right to be on the land. Moti Ram admits no probate has been taken out since his father’s death in 1998. No evidence has been adduced, such as of expenditure on, or improvements to, the land to begin to raise the defences of acquiescence, waiver, or estoppel.

The Plaintiff said she asked Mani Ram to quit after the rescission of the agreement in 1995. There was no lease or agreement between the Plaintiff and the Defendants, therefore a notice to quit would not be required since they were not the Plaintiff’s tenants.

The Defendants would have to establish the validity of Mani Ram’s claim first before they could be treated as entitled to a notice in the absence of appointed personal representatives for Mani Ram’s estate: Egerton v Rutter and Anor. [1951] 1 K.B. 472. The Plaintiff denies waiving any of her rights to re-claim possession. If a notice had been given to the Defendants as trespassers, as a preliminary to the institution of these proceedings, it is not clear in what form it had been given, whether written or oral. The Plaintiff said in her second affidavit “........ I deny that the rights under the said notice have been waived by any alleged subsequent acts of mine. I deny allowing the Defendants to occupy and remain on my said land.” However the writ in a previous action was exhibited to Moti Ram’s affidavit. From the statement of claim it would appear that the notice dated the 28th of April 1995 was in writing.

On the evidence before me, nothing indicates why such notice might have been defective, if it were necessary. Solicitors will invariably issue notice letters to trespassers, prior to action, as a matter of practice, hoping no doubt costs might be saved and agreement for departure reached. Such notice for trespassers is not a pre-requisite for ejectment proceedings.

The Defendants complain that there has been material non-disclosure here. This was a failure to disclose the pendency of an action, that is the one already referred to above, between the Plaintiff and Mani Ram concerning the same sale agreement and land, in which the Plaintiff sought inter alia to evict Mani Ram. This might have been material if the present claim had joined Mani Ram or his estate. If the facts of that action were shown to be as in the claim, namely that there had been failure to pay for the purchase by the due date and that time was stated to be of the essence, termination or rescission would no doubt have been approved by the court. This revelation does not appear to support the present Defendants’ claim for occupation. The non-disclosure is not material to the present action: Rex v Kensington Income Tax Commissioners ex parte Princess Edmond de Polignac [1917] K.B. 486; Brinks MAT Ltd v. Elcombe [1988] 3 ALL E.R. 188, at p193a.

Of other lines of argument, such as the arbitration clause of the agreement, and the alleged failure to account for cane proceeds, both are matters for Mani Ram’s
estate to pursue. They do not provide foundation for the Defendant’s claim to remain on the property. Nor am I satisfied that there has been unconscionable conduct towards the Defendants giving rise to estoppel.

The 2nd named Defendant also exhibited a copy of a notice from the Agricultural Tribunal dated 22.11.99. The Plaintiff denies she was ever served with such a notice. The application states that it is made by virtue of the sale and purchase agreement of 7th December 1992, presumably the one made by Mani Ram. No evidence has been put to me showing that there has been prior compliance with clause 2 of the lease. This is a standard form clause prohibiting the parting with possession of the land or the dealing with it in any manner whatsoever “without the consent in writing of the lessor first had and obtained.” It appears from the 2nd named Defendant’s affidavit that Mani Ram did enter upon the land, and did take possession. He did so in breach of clause 7 of the agreement, though clause 6 seems to be in some conflict with clause 7. More significantly though, the agreement was unlawful for being in violation of clause 2 of the lease, by purporting to deal with the land without the head landlord’s prior consent. None of this provides satisfactory evidence of rights of occupation to the Defendants who may or may not be beneficiaries under the estate of Mani Ram. It is for the Defendants to prove that the necessary consent was given for their occupation of the land: Angamuttu & Others v Jai Narayan [1960] 7 Fiji LR 36 at p.38. If Mani Ram’s dealing was void and a nullity, the essential plank for the Defendants’ claim for unlawful occupation of the land is removed.

These therefore are the reasons for my earlier orders for vacant possession for the Plaintiff and for Plaintiff’s costs of $350.

A.H.C.T. GATES
JUDGE

Solicitors for the Plaintiff : Messrs Gordon & Co, Lautoka
Solicitors for the Defendants: Messrs M.K. Sahu Khan & Co., Ba
[later Messrs Samuel K. Ram & Co., Ba]