Pal v Kumar [2005] FJHC 702; HBC0106.2005L (25 November 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0106 OF 2005L

BETWEEN:

AJAY PAL
f/n Shiu Shankar,
JOHN RAKESH PAL
s/o Ajay Pal and
HERALD SATENDRA PAL CHAUDHARY
s/o Ajay Pal
Plaintiffs

AND:

DAVID DIVENDRA KUMAR
s/o Sundressan Pillay
Defendant

Dr. Sahu Khan for the plaintiff
Mr. E. Moapa for the defendant

Date of Hearing: 9 November 2005
Date of Judgment: 25 November 2005

JUDGMENT

The plaintiff applies by way of Summons for an order for possession of the land known as Malaqereqere being part of Lot 10 in DP 2472 having an area of 8 acres and 38 perches and part of the land in Certificate of Title No. 19064.

The grounds of the application are set forth in the affidavit of Herald Satendra Pal Chaudhary sworn on the 19^th April 2005.

The plaintiff relies on the further affidavit sworn by the same deponent on the 26^th June 2005 and an affidavit of Ajay Pal sworn on the 24^th October 2005.

The defendant relies on the affidavit sworn by him on the 3^rd June 2005.

Section 169 of the Land Transfer Act Cap. 131 relevantly provides that the last registered proprietor of any land may summon any person in possession of land to appear before judge in chambers to show cause why the person summoned should not give up possession of the land to the applicant.

Section 172 of the Act however provides that:

“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 summon shall be dismissed.

It appears from the affidavit evidence that the defendant has been occupying land owned by the plaintiffs since 2004 and has erected a 3 bedroom dwelling house on Lot 1 being part of Lot 10 in DP 2472. The defendant together with his family has been occupying the dwelling house.

It is the plaintiffs’ contention that the defendant built the house without the consent of the plaintiffs however the defendant maintains that he had the consent of the first named plaintiff.

It would appear that there was a proposed scheme plan compiled by the plaintiff to subdivide the subject land and that it was intended that the defendant would purchase Lot 1 within that proposed scheme plan for the sum of $13,000.00.

No consent of the Director of Town and Country Planning was ever sought or obtained with respect to the proposed scheme plan.

It would also appear that no consent was ever obtained with respect to the agreement to sell Lot 1 in the proposed scheme plan to the defendant.

It would appear from the evidence that the agreement to sell Lot 1 to the defendant was never completed. A finance application was made by the defendant to facilitate the purchase for the sum of $13,000.00. It appears that the bank indicated its willingness to advance the sum of $10,850.00 subject to a Fiji National Provident Fund contribution of $3,000.00 and further subject to a mortgage being granted by the plaintiffs with respect to the whole of the land in Certificate of Title No. 19064. Needless to say, the plaintiffs did not grant the security over the whole of their land.

The defendant would also appear to rely upon a subsequent agreement with the first named plaintiff which agreement, it is argued, entitled the defendant to construct his house on “No. 1 block of my land”. It is argued on behalf of the plaintiffs that this reference refers to land owned solely by the first named plaintiff. This agreement makes no reference to any title nor does it describe the land in any better way than “No. 1 block of my land.”

The plaintiffs submit that the agreement does not satisfy the requirements of the Statute of Frauds, section 4 of the Indemnity Guarantee Empowerment Act and further that the document is not signed by the 2^nd and 3^rd plaintiffs who were registered proprietors of the subject land.

In addition, the 1^st plaintiff in paragraph 11 of his affidavit says that he agreed to sell to the defendant land comprised in Certificate of Title No. 27870 which is land here and not land within Certificate of Title No. 19064 which is the land the subject of the proceedings and which is owned by the plaintiffs.

Section 4 of the Subdivision of Land Act provides that:

“No land to which you have to apply shall be subdivided without the prior approval of the director. There are provisos to this section which do not however applied to the subject land. Director is a reference to the Director of Town & Country Planning.”

The situation with respect to the provisions of the Subdivision of Land Act was considered by the Fiji Court of Appeal in Devi Dayal v Jagdish Kumar & Another – Civil Appeal No. 33 of 1980 where the Court held that the consent required by section 4 of the Act is the prior approval of the Director of Town & Country Planning and that the Court would not land its eye to perfecting a scheme already carried out.

The defendant seeks to rely upon the doctrine of estoppel and refers the Court to the decision of the Supreme Court of the Fiji Islands in Ram Swami & Adi Narayan v Padma Wati – CBV0003 of 1997. The Court there said:

“The relevant principle in its application to acts done with respect to land is that a court will protect a person who expends money on another’s land in the expectation, created or encouraged by the owner, that he is to have an interest in it, or a person who expends money on another’s land in the belief that he has an interest in the land and the true owner knows of the mistaken belief and the expenditure.”

The Court however went on most relevantly to say:

“Even assuming that equity would apart from section 12 of intervene and have prevented the respondent from obtaining the building for nothing by granting title, whether by way of charge, land or otherwise over the land on which the house was erected, that section as the authority show, is a bar to relief. The arrangement between the parties, with the erection of the building, to the extent that it gave rise to such an equitable right amounted to “dealing” with the land, within the meaning of section 12 to which the consent of the Board was not obtained. The dealing was therefore unlawful under the Ordinance and the court cannot grant equitable relief.

This is not a case in which it is possible to say that the parties’ arrangement with subject to obtaining the consent of the Board. The parties simply proceeded on the assumption that consent was unnecessary with the result that the building was erected regardless of consent. The consequence is that, assuming the circumstances was such as to generate an equitable right to title, the completion of the arrangements resulted in illegality. The case is governed by the decision in Chalmers v Pardoe and must fail.”

It would seem that in the present case the same situation arises in that there has been no compliance with section 4 of the Subdivision of Land Act which therefore leads to the same conclusion. Equity cannot be relied upon to support an illegality.

In the circumstances therefore the defendant has failed to prove to the satisfaction of the court a right to the possession of the land as required by section 172 of the Land Transfer Act and accordingly the Order of the Court will be:

1. The plaintiff is adjudged entitled to possession of the land.

2. Execution of the order is stayed until the 1^st February 2006.

3. Defendant is to pay the plaintiffs’ costs as agreed or assessed.

JOHN CONNORS
JUDGE

At Lautoka
25 November 2005