Kuar v Prasad [2005] FJHC 137; HBC0270j.2004s (16 June 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 270 OF 2004

Between:

SURUJ KUAR f/n Shiu Raj
and RAJ MATI d/o Ram Prasad
as Joint Executrixes and Trustees
of the Estate of RAM PRASAD f/n Ragunath
aka Maha Deo
Plaintiffs

and

SARAB JEET PRASAD
f/n Ram Prasad
Defendant

Mr. M. Arjun for the Plaintiffs
Ms. B. Devi for the Defendant

JUDGMENT

This is a s169 application under the Land Transfer Act Cap. 131 (the ‘Act’).

By Originating Summons dated 13 July 2004 supported by an affidavit the plaintiffs seek an order for vacant possession of the land and building comprised in Certificate of Title No. 6739 being Lots 1 & 3 on Deposited Plan No. 1312 Waibola (part of) situated in the District of Suva in the Island of Viti Levu (hereafter referred to as the ‘property’)

The defendant filed an affidavit in reply on 7 September 2004 followed by a response from the plaintiffs on 5 October with a further reply from the defendant on 10 November 2004. The plaintiffs filed a response thereto on 28 January 2005.

The matter did not come up before me for hearing until my return from long leave. Written submissions were filed on 3 May 2005 by the plaintiffs and on 4 May by the defendant.

Plaintiffs’ case

The plaintiffs are the joint executrixes and trustees of the Estate of Ram Prasad f/n Raghunath aka Maha Deo (the ‘deceased’). Probate of the Will of the deceased was granted to the plaintiffs on 7 July 1995 being Probate No. 31235.

The plaintiff are the registered proprietors of the property by virtue of Transmission by Death registered on 3 October 1995.

The plaintiffs say that the defendant has been occupying the property as a licensee and the said licence has been revoked.

Notice to Quit was served on the defendant but he has failed to vacate the property.

The plaintiffs rely on the Will of the deceased dated 24 August 1992 which makes no provision for the defendant except to say that if the deceased’s wife dies within a month of his death then the defendant along with his other brothers become the beneficiaries.

As for payments etc alleged to have been made by the defendant, the plaintiffs say, inter alia, that these payments were not made ‘out of the defendant’s pocket’ but from the income derived from Fiji Saw Milling and Bulldozing Company.

Defendant’s contention

In opposing the application the defendant briefly states that that he ‘is legal son and a beneficiary’ under the Will of his father, the deceased.

He says that he has been in occupation of the property in question for the past thirty-seven years with ‘an express authority from my father to run the saw mill on the property and to enjoy, manage and pay debt of the property to Westpac Banking Corporation’. He has given evidence of that.

He further said that his father ‘had further promised me to take over this particular property as it would be my future property as a gift and he would convey same to me by way of transfer’.

The defendant has stated the amount of money he spent in developing and maintaining the property and paying debts of the land.

Despite the provision in the Will giving the residency estate to his widow the defendant still maintains that he along with his other 4 brothers are beneficiaries in the estate because he says that the said Will did not provide for all the properties of the estate.

In a further lengthy affidavit sworn 10 November 2004 the defendant makes claim to the property as one maintaining and improving the property while the plaintiff (1st) resides in U.S.A. and the second plaintiff carries on her own business in Nadi.

Consideration of the issue

As ordered both counsel made lengthy and comprehensive submissions and I have given these due consideration.

Apart from these submissions the affidavits filed by both sides provide evidence as in the trial of an action.

I find that triable issues have been raised and they cannot be determined without an open Court hearing. I have already covered at some length some of the evidence pertinent to the issue.

Section 169 is a summary procedure. It is available in straightforward cases where there are no dispute as to facts. Where triable issues are raised the Court will not in the interest of justice and in the exercise of its discretion under section 172 grant the application.

It should not be taken for granted that because the applicants are the registered proprietors it automatically follows that an order for possession will be made. The defendant under s172 ‘may show cause why he refuses to give possession of such land, if he proves to the satisfaction of the judge a right to the possession’.

There is no doubt that the plaintiffs are the registered proprietors of the property. It will be on the evidence that the Court will decide whether an order ought to be made or not.

The procedure under s169 is governed by sections 171 and 172 of the Act which provide respectively as follows:

“s.171. On the day appointed for the hearing of the Summons, if the person summoned does not appear, then upon proof to the satisfaction of the Judge of the due service of such summons and upon proof of the title by the proprietor or lessor and, if any consent is necessary, by the production and proof of such consent, the judge may order immediate possession to be given to the plaintiff, which order shall have the effect of and may be enforced as a judgment in ejectment.”

s.172, If the person summoned appears he may show cause why he refuses to give possession of such land and, if he proves 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 lessor or he may make any order and impose any terms he may think fit.”

I find that there are complicated questions of fact in this case to be investigated. Therefore the procedure under s.169 is not appropriate here.

On this aspect in Ram Narayan s/o Durga Prasad v Moti Ram s/o Ram Charan (Civ. App. No. 16/83 FCA) Gould J.P. said:

“... the summary procedure has been provided in the Land Transfer Act and, where the issues involved are straightforward, and particularly where there are no complicated issues of fact, a litigant is entitled to have his application decided in that way.”

On the requirements of section 172 the Supreme Court in Morris Hedstrom Limited v. Liaquat Ali, (Action No. 153/87 at p2) said as follows and it is pertinent:

“Under Section 172 the person summonsed may show cause why he refused to give possession of the land and if he proves to the satisfaction of the judge a right to possession or can establish an arguable defence the application will be dismissed with costs in his favour. The Defendants must show on affidavit evidence some right to possession which would preclude the granting of an order for possession under Section 169 procedure. That is not to say that final or incontrovertible proof of a right to remain in possession must be adduced. What is required is that some tangible evidence establishing a right or supporting an arguable case for such a right, must be adduced.”

In this case the defendant has raised a number of issues including promises and representations on the basis of which he incurred expenditure as outlined hereabove and in his affidavits.

Although he cannot produce any title or enforceable right to remain on the land vis à vis the Title holders the plaintiffs, he could seek compensation or damages from the estate if he can prove that he has been misled into expending money in building houses on the property [Ram Singh f/n Sobha Ram v Azad Kumar f/n Bihari (Civil Action 661/85 and 44/86 – Lautoka – Dyke J].

In the present case the defendant alleges that he built houses on the property in the circumstances as outlined in his affidavits. As has been said by the Court of Appeal in Ram Chand and Others v Ram Chandra (Civil Appeal No. 21/02S):

“the fact that a tenant carries out improvements without the consent of his or her landlord does not give him a right to continue in the occupation of the land if the landlord is otherwise lawfully entitled to it. On the other hand, if improvements are carried out pursuant to some understanding, however loose, it may be that in some cases rights will be conferred on tenants at least to purchase the land if a price can be agreed upon. One cannot lay down any hard and fast rule. Every case will depend upon its own facts.”

Conclusion

In the outcome, as stated hereabove s169 provides a summary and expeditious method of obtaining possession. This is applicable to ordinary cases without any complicated questions of fact and legal inferences and complicated questions of fact are to be investigated.

I find that the defendant has ‘shown cause’ to my satisfaction why he should not give vacant possession of the property as required under s172 of the Act.

The plaintiffs have stated that the defendant was a ‘licensee’. Can it be said that the defendant, as one of the sons of the deceased who previously was the registered proprietor of the property, is a ‘licensee’. I do not think so. He was and is lawfully there as a son who allegedly spent money in looking after and improving the property (National Provincial Bank Ltd v Ainsworth [1965] UKHL 1; [1965] A.C. 1175 at 1232.

Here the defendant while his father the deceased was still alive and after his death in the knowledge and acquiescence and encouragement of the executors herein led to him incurring expenditure and running the father’s business. The situation here is as stated in the following passage from the judgment of Oliver J in Taylor Fashions Ltd. v Liverpool Trustees Co [1982] 1 Q.B. 133 at 148:

“The fact is that acquiescence or encouragement may take the form of standing by in silence whilst one party unwittingly infringes another’s legal rights. It may take the form of passive or active encouragement of expenditure or alteration of legal position upon the footing of some unilateral or shared legal or factual supposition. Or it may, for example, take the form of stimulating, or not objecting to some change of legal position on the faith of a unilateral or shared assumption as to the future conduct of one or other party.”

On the aspect of indefeasibility of title the following sections 38, 39 and 40 of the Act are relevant to this case and are to be borne in mind in considering the issue before the Court.

Section 38 provides: (registered instrument to be conclusive evidence of title).

“No instrument of title registered under the provisions of this Act shall be impeached or defeasible by reason of or on account of any informality or in any application or document or in any proceedings previous to the registration of the instrument of title”.

Section 39 provides: (estate of registered proprietor paramount, and his title guaranteed):

Section 39(1)

“Notwithstanding the existence in any other person of any estate or interest, whether derived by grant from the Crown or otherwise, which but for this Act might be held to be paramount or to have priority, the registered proprietor of any land subject to the provisions of this Act, or of any estate or interest therein, shall except in case of fraud, hold the same subject to such encumbrances as may be notified on the folium of the register constituted by the instrument of title, thereto, but absolutely free from all other encumbrances whatsoever except:-

(a) the estate or interest of a proprietor claiming the same land, estate or interest under a prior instrument of title registered under the provisions of this Act; and

(b) so far as regards any portion of land that may be by wrong description or parcels or of boundaries he erroneously included in the instrument of title of the registered proprietor not being a purchaser or mortgagee for value or deriving title from a purchaser or mortgagee for value; and

(c) any reservations, exceptions conditions and powers contained in the original grant.

39. (2) Subject to the provisions of Part XIII no estate or interest in any land subject to the provisions of this Act shall be acquired by possession or user adversely to or in derogation of the title of any person registered as the proprietor of any estate or interest in such land under the provisions of this Act.” (emphasis added)

Section 40 stated: (purchaser not affected by notice):

Except in the case of fraud, no person contracting or dealing with or taking or proposing to take a transfer from the proprietor of any estate or interest in land subject to the provisions of this Act shall be required or in any manner concerned to inquire or ascertain the circumstances in or the consideration for which such proprietor or in any previous proprietor of such estate or interest is or was registered, or to see to the application of the purchase money or any part thereof, or shall be affected by notice, direct or constructive, of any trust or unregistered interest, any rule of law or equity to the and the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud contrary notwithstanding. (emphasis mine)

From the evidence it cannot be denied that the defendant had been in occupation of the property for over three decades without him being evicted by either his deceased father or the present executors and trustees who are the plaintiffs in this action. This shows that the defendant had been in occupation with the tacit approval of all of these abovementioned people.

A similar situation as in this case arose in Inwards v Baker [1965] EWCA Civ 4; [1965] 2 Q.B. 29 where the son lived on his father’s land for 20 years at his suggestion after building a bungalow before the trustees brought proceedings for possession of the bungalow. In revising the order for possession of the court below it was held:

“ ... that where a person expended money on the land of another in the expectation, induced or encouraged by the owner of the land, that he would be allowed to remain in occupation, an equity was created such that the court would protect his occupation of the land, and the court had power to determine in what way the equity so arising could be satisfied.”

The case of Gurdial Singh v Shiu Raj (Civil Appeal No. 44 of 1982 unreported) is another case which went against the plaintiff/applicant. That was a case of a housegirl having lived on her employer’s land. The employer’s son instituted proceedings for vacant possession. The Fiji Court of Appeal upheld the lower Court’s decision and said at p5:

“In our opinion all that the learned judge was required to do in these proceedings was either to make an order for possession or dismiss the summons; on the evidence before him the learned judge dismissed the summons and in so doing concluded that the appellant was estopped from denying that the respondent had lived on the land for over 20 years to the knowledge of the appellant and without effort on his part to evict her.”

Finally, to bring the picture up to date, in Maharaj v Chand [1986] 1 A.C. 898 the Privy Council in situation like the present where the husband applied to evict his wife from the household:

“Held ... as it would be inequitable ... for the plaintiff to evict the defendant he was estopped from denying that she had his permission to reside permanently in the house;”

In conclusion the following passage from the Fiji Court of Appeal in Azmat Ali s/o Akbar Ali and Mohammed Jalil f/n Mohammed Hanif (Action No. 44/81) is pertinent:

“It is not enough to show a possible future right to possession. That is an acceptable statement as far as it goes, but the section continues that if the person summoned does show cause the judge shall dismiss the summons; but then are added the very wide words “or he may make any order and impose any terms he may think fit”. These words must apply, though the person appearing has failed to satisfy 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. (emphasis mine)

For the above reasons the plaintiffs’ originating summons for vacant possession is dismissed with costs in the sum of $350.00 to be paid within 21 days.

D. Pathik
Judge

At Suva
16 June 2005