Sami v Wati [2010] FJHC 279; HBC35.2005 (7 June 2010)

This is an action brought by the Plaintiff who, in the indorsement on the Writ, claimed specific performance of what was described as an undertaking given in writing on 12 November 2002 to transfer Lot 21 on DP 3037 contained in Certificate of Title Number 14368.

The Writ had been filed on 26 July 2005. The Plaintiff’s Statement of Claim was not filed until 2 May 2006 and his Amended Statement of Claim was filed on 15 April 2008.

In his Amended Statement of Claim the Plaintiff sought relief in the form of a declaration that Chandra Prabha held the land contained in CT 14368 in trust for the Plaintiff. He also sought a declaration that he has a proprietary right in the said land and an order that the Second Defendant transfer the land to him. The Plaintiff also claimed special and general damages and claim (e) is expressed as "alternatively for restitution".

The facts upon which the Plaintiff relied for his claims are set out in paragraphs 4 to 11 of the Amended Statement of Claim.

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"4 That prior to her death the Plaintiff and Chandra Prabha lived together in a de facto relationship since 1981.

5 In or about the year 1981 Chandra Prabha requested the Plaintiff to move his house to Lot 21 on DP 3037 on CT 14368 belonging to Chandra Prabha and which lot was located adjacent to her land and dwelling. She promised to buy lot 21 on DP 3037 on CT 14368 in future for the Plaintiff.

6 That upon Chandra Prabha’s request and with her concurrence and knowledge the Plaintiff dismantled his 30 feet by 20 feet dwelling consisting of two bedrooms, a kitchen and a sitting room and relocated and constructed the same on Lot 21 on CT 14368. He also constructed a flush toilet and a concrete bathroom.

7. The Plaintiff incurred expenses on labour and material in relocation and construction of the house.

8 The Plaintiff spent approximately $15,000 from 1986 until her death on 18 December 2002 on Chandra Prabha to assist her in meeting her expenses upon her assurance and promise that Lot 21 would be transferred to the Plaintiff.

9 In 1992 Chandra Prabha bought Lot 21 on CT 14368 for the Plaintiff. However she kept the land in her name as a security since they were not married. Chandra Prabha promised the Plaintiff that she would hold the land in her name for the benefit of the Plaintiff and upon her death the land would be transferred to the Plaintiff.

10 The Plaintiff with the knowledge of Chandra Prabha and with her encouragement and upon reliance of her promise moved his house to Lot 21 on CT 14368 and carried out improvements and incurred expenses.

*Particulars*
*a. Grading & landscaping*	*$ 1,500.00*
*b. Relocation of premises*	*$ 750.00*
*c. Renovation & construction*	*$17,000.00*
*d. Moneys spent on Chandra Prabha*	*$15,000.00*
*Total*	*$34,250.00*

11 On 12 November 2002 Chandra Prabha expressed her desire to transfer Lot 21 on DP 3037 to the Plaintiff upon her death."

Initially paragraph 5 of the Statement of Claim referred to the year as 1986. At the commencement of the trial Counsel for the Plaintiff sought and was granted leave to amend the year to 1981.

This application was probably sought to relate the request back to the year the relationship was alleged to have started as stated in paragraph 4 of the Statement of Claim.

However the amendment compounded a problem that was already apparent on the face of the claim. How could Chandra Prabha have requested the Plaintiff to move his house on to Lot 21 in 1981 (or 1986)? She did not purchase the land until 1992 as stated in paragraph 9 of the Statement of Claim.

During the course of his evidence the Plaintiff stated that Chandra Prabha showed him a receipt in the sum of $9,500 which was dated 1986 and which, the Plaintiff claimed, Chandra Prabha told him was for the purchase of Lot 21.

As a result Counsel for the Plaintiff made an application almost at the end of the trial to amend the year referred to in paragraph 5 of the Claim back to 1986. The application was refused.

It should be noted that paragraphs 6 and 10 plead the same set of facts. However neither paragraph states the date or the year when the Plaintiff actually moved his house to Lot 21. The result is that if reliance is placed on paragraph 6 he did so some time between 1981 and 1986 or even possibly 1992. However if reliance is placed on paragraph 10, then he did so some time after Chandra Prabha purchased Lot 21 in 1992.

Lot 21 was located at Vunikoka in the Savusavu area. Adjoining Lot 21 was Lot 22 which was at all material time owned by Chandra Prabha (mistakenly referred to as Prabha Wati in paragraph 3 of the Statement of Claim). Chandra Prabha lived in a dwelling on Lot 22 with her mother and her sister who suffered from a mental illness. If Chandra Prabha had ever married (the First Defendant’s two affidavits filed in interlocutory proceedings were in conflict on this point), she was certainly no longer married in 1981. She never had any children.

The Plaintiff is a carpenter by occupation who initially stayed in Navaqiqi also located in the Savusavu area. He later moved onto Lot 21 at Vunikoka. He was at all material time married. He and his wife have five children two of whom are sons aged 25 and 14 and who still reside with the Plaintiff and his wife.

The First Defendant is the Executrix and Trustee of the Estate of Chandra Prabha who died on 18 December 2002 (hereafter referred to as "the deceased"). The First Defendant was (what is a common expression in Fiji) a cousin sister of the deceased. She was granted Probate of Chandra Prabha’s estate on 21 February 2003.

The Will of Chandra Prabha was dated 17 December 2002. It purported to be signed by the testatrix by a finger print or prints. The Will is witnessed by two staff nurses.

"all my property both real and personal of whatsoever nature or kindsoever and wheresoever situate unto my cousin sister Lalita Wati Father’s name Shiu Shankar of Sabeto Nadi Law Clerk for her sole use and benefit absolutely."

It is perhaps convenient at this stage to consider the Will. On the face of the document it is a properly made will and probate in respect thereof was granted to the First Defendant.

Under those circumstances the onus of proof was on the Plaintiff to establish the allegations that first appeared in an affidavit sworn by him on 10 January 2006 and filed in respect of interlocutory proceedings.

"It is only after the death of Chandra Prabha that Lalita had forged the Will and attempted to claim the property."

These allegations of fact were made by the Plaintiff in response to statements contained in an affidavit sworn by the First Defendant on 14 November 2005 in support of a striking out application. In that affidavit the First Defendant states that if the deceased (Chandra Prabha) had intended to leave Lot 21 to the Plaintiff she would have mentioned this fact in her will.

However in an earlier affidavit sworn by the Plaintiff on 22 July 2005 in support of his ex parte application for an interlocutory injunction, there was no reference of any description to the Will of Chandra Prabha (deceased) nor was there any reference to any of the allegations that were subsequently raised by the Plaintiff in the latter affidavit.

In paragraph 10 of his Statement of Claim dated 8 April 2006 (after the affidavits referred to had been filed) the Plaintiff took the allegation one step further when he pleaded:

"10. That on or about the 17th December 2002 a day before the death of Chandra Prabha the Defendant caused a Will to be made and had the same executed under dubious circumstances which is under police investigation."

That pleading is repeated in identical wording in paragraph 12 of the Amended Statement of Claim dated 14 April 2008.

The pleading is ambiguous in the sense that it is not entirely clear whether the Plaintiff is asserting that the making and the executing of the Will are referring to the same event. Nor is it clear whether the Plaintiff is asserting that the events occurred on the same day. No further particulars were provided.

"5. That as to paragraph 10 of the Statement of Claim the First Defendant says that she denies the same and the will was made and executed on the deceased’s instructions on her own free will. ...."

In her Defence to the Plaintiff’s Amended Statement of Claim she pleaded to the same allegation as follows:

"10. That the First Defendant denies the allegation contained in paragraph 12 of the Amended Statement of Claim and says that the Police investigation is complete and the report is already in the Court file."

Apart from pleading that he joins issue with the content of paragraph 10 the Plaintiff did not plead any material fact in his Reply dated 2 June 2008.

The Police report referred to by the First defendant in her Defence was not produced at the trial. There is no copy in the court file and neither the Plaintiff nor the First Defendant were questioned on the existence or contents of the report.

The two named witnesses in the will were not called to give evidence and nor was any explanation offered as to why they were not called. As the onus in respect of this issue was on the Plaintiff, the Court would be entitled to draw the inference in the absence of a reasonable explanation that the evidence of the witnesses would not have been of any assistance to the Plaintiff.

The only evidence called by the Plaintiff to support his allegations was given by Adimaitoga Kelera Matakibau. This lady and her husband took up residence in the deceased’s home on Lot 22 in about 1995. They and their four children were initially tenants paying rent at $60.00 per month. However shortly afterwards, Ms Matakibau was asked by Chandra Prabha to help with looking after her mother instead of paying rent.

Ms Matakibau and her family continued to reside mostly rent free at the deceased’s house from that date until the present time. In the meantime, Chandra Prabha’s sister, her mother and Chandra Prabha herself have all passed away. In her evidence Ms Matakibau stated that before she died the deceased had told her that she could have Lot 22 and the Plaintiff could have Lot 21.

On the question of the will, Ms Matakibau stated that the First Defendant came to Savusavu about a week before Chandra Prabha died. She came with some papers including a document for the ailing Chandra Prabha to sign. Chandra Prabha had been admitted to Savusavu Hospital on about 26 November 2002. Ms Matakibau stated that both the First Defendant and she asked Chandra Prabha to sign the document which was apparently the will. Ms Matakibau stated that Chandra Prabha refused to sign and that the First Defendant took the papers away. She also stated that Chandra Prabha usually signed documents and that she did not see Chandra Prabha put her fingerprint on the will.

Ms Matakibau then related a most unusual series of events that are alleged to have occurred following the death of Chandra Prabha. She stated that when the deceased’s body was at the Nadi Mortuary, she observed the First Defendant produce a stamp pad out of her bag and place the deceased’s fingerprint on the will. She said that although she was seated against the wall she was close enough to see that the will had the signatures and the signature blocks of the two witnesses already on the document but that it was undated. She said she recognised the names of the witnesses and knew them.

In her evidence the first Defendant stated that she had arranged for the will to be prepared at the law firm at which she was then employed in Nadi. This was done upon returning from discussions with Chandra Prabha following the mother’s funeral, in early November 2002 at Savusavu. She then arranged for the will to be sent to Savusavu for Chandra Prabha to sign. She claimed that the Plaintiff had intercepted the will before the deceased had signed it.

Shortly afterwards she received a call from the Plaintiff that Chandra Prabha was ill and had been admitted to hospital. Upon arrival at Savusavu she obtained the unsigned will from the Plaintiff and handed it to Ms Matakibau. She left the will with Ms Matakibau who said that she would have it signed. The First Defendant then returned to Nadi. She said that she was handed the duly executed will by Ms Matakibau when she returned to Savusavu shortly after Chandra Prabha’s death on 18 December 2002.

The First Defendant denied taking the will to the Nadi Mortuary. She also denied that Ms Matakibau was present with her at the Nadi Mortuary since on such occasions only close relatives attend and only Indo Fijians attend such occasions.

On the balance of probabilities I accept the evidence of the First Defendant on this matter. The only evidence questioning the propriety of the will was given by a person who had as much to gain from the outcome of this action as did the Plaintiff. In the event that the First Defendant was successfully divested of Lot 21 then for similar reasons she might also be divested of Lot 22 in separate proceedings already commenced by Ms Matakibau.

In addition, none of the allegations were pleaded as particulars to paragraph 12 of the Amended Statement of Claim.

The First Defendant’s evidence was more consistent and described a more probable chain of events. Her recollection of events was logical and appeared to be more reliable as she described the events as they unfolded. The evidence given by Ms Matakibau was in part sensational and there was no material to corroborate her claims.

There was no material before the Court to indicate that any person had commenced proceedings for a decree pronouncing against the validity of the Will.

It is appropriate now to refer to the document upon which the Plaintiff relies for the claim in paragraph 11 of the Amended Statement of Claim that on 12 November 2002 Chandra Prabha expressed her desire to transfer the land to the Plaintiff upon her death.

During the course of the Plaintiff’s evidence Counsel for the Plaintiff produced a copy document dated 12 November 2002 that purported to be signed by both the Plaintiff and the First Defendant and witnessed by Pundit Ravi Chand Maharaj. As the document produced by Counsel was only a copy and as the First Defendant had deposed in an earlier affidavit filed in interlocutory proceedings that what purported to be Chandra Prabha’s signature was not her signature, the document was not admitted into evidence at the trial.

However the same document was referred to in paragraph 13 of an affidavit sworn by the Plaintiff on 22 July 2005 and filed in support of his application for an interlocutory injunction. The document that is annexed to the affidavit was also described as being "a copy of that writing." The document stated:

"I Chandra Prabha ... declare that I have a de-facto relationship with Mr Muttu Sami ... of Vunikoka Savusavu for the last sixteen years.

In event of my death I would like to transfer Lot 21 on DP 3037 to Muttu Sami on which he is currently residing.

This is presumably the document upon which the initial claim for specific performance was based in the indorsement of claim. Incidentally, for reasons best known to themselves the Legal Practitioners acting for the First Defendant at that time filed a Defence to that indorsement. Furthermore, the claim for specific performance was not included as relief sought in the Amended Statement of Claim.

Presumably it was the desire expressed therein that now forms in part the basis of the Plaintiff’s claim that Lot 21 was being held on trust for him by the deceased.

First, these proceedings were not commenced until July 2005 and it is of some concern to the Court that this document which is dated 12 November 2002 did not form part of an earlier challenge either to the validity of the will or to the subsequent registration of the First Defendant as registered proprietor of Lot 21. There was also a delay of some two and half years before proceedings were commenced.

Secondly, the document states that the de factor relationship had been in existence for 16 years which would indicate that it started in 1986. However in the Amended Statement of Claim filed by the Plaintiff and in his evidence he asserted that the relationship had commenced in 1981.

I have concluded that it would be unsafe to attach any weight to the contents of a copy when there was no reasonable explanation as to the whereabouts of the original document.

Having heard the evidence given by the Plaintiff, the Plaintiff’s wife and Ms Matakibau I am satisfied on the balance of probabilities that the Plaintiff and Chandra Prabha were involved in a relationship. In 1981 they were both in their late twenties. The fact that the First Defendant was not aware of it and denied its existence is not surprising. She admitted that she only came from Nadi to visit her cousin sister in Savusavu from time to time.

I am also satisfied that this relationship commenced in about 1981. In his affidavit sworn on 22 July 2005 the Plaintiff deposed that he and the deceased "had been living in a de factor relationship since 1981". In his evidence the Plaintiff explained how the relationship had started.

It would appear that in late 1980 the Plaintiff carried out some renovation work on Chandra Prabha’s home on Lot 22 at her request for the sum of $3,500.00. This amount was paid off by Chandra Prabha at the rate of $300.00 per week each Friday in cash. Then in 1981 the deceased had requested the Plaintiff to do some extensions to her home in the form of an additional bedroom, sitting room, toilet and bathroom. The Plaintiff said in his evidence that there was no agreement as to price. He stated that shortly after he started the work, they began their relationship. He said that when he stayed at Chandra Prabha’s house it was as husband and wife and that he usually spent two or three nights each week at Chandra Prabha’s house. She apparently cooked meals for him when ever he visited. I accept that the relationship continued in a physical sense for some considerable period of time after the Plaintiff had completed the extensions to Chandra Prabha’s house.

In his evidence the Plaintiff told the Court that the extensions to the deceased’s house were valued at about $15,000.00 being for both labour and materials. He stated that two labourers were paid $200.00 per week for up to three to four months.

One aspect of this arrangement that has caused the Court some concern is that on the evidence before me I cannot avoid the conclusion that the Plaintiff’s wife became aware of the relationship at some point in time and once aware of it condoned it to the extent that she and the Plaintiff also continued to live as husband and wife. As the First Defendant, not without some considerable merit, pleaded in paragraph 2 of her Defence that "... as the Plaintiff was married and no wife will join her husband to stay in de facto relationship with another woman." The fact that the relationship continued for many years with the knowledge of the Plaintiff’s wife who in turn at the same time continued to live as husband and wife with the Plaintiff raises a question concerning the true intentions of the Plaintiff and his wife.

Although the Plaintiff both in his amended Statement of Claim and in his evidence described the relationship as a de facto relationship, that description is not entirely accurate.

For the duration of the relationship, the Plaintiff was married with children. Therefore his relationship with the deceased was extra marital and on the basis of his evidence was an adulterous relationship and not a de facto relationship which suggests that the couple lived together as husband and wife. Adultery is defined in the Oxford Dictionary of Law (Fifth Edition) as:

"An act of sexual intercourse between a male and female not married to each other, when at least one of them is married to someone else."

Furthermore between 1981 and 2002 the law regulating marriage in Fiji was the Matrimonial Causes Act Cap 51. Under section 14 of that Act, one of the grounds for a petition of dissolution (divorce) was that, since the marriage, a party to the marriage has committed adultery.

It was conceded by both the Plaintiff and his wife that the Plaintiff’s wife was aware of the relationship and presumably the adulterous nature of the relationship. In their evidence both the Plaintiff and his wife acknowledged that this arrangement had as its ultimate purpose the aim of eventually securing an interest in Lot 21.

Certainly, the Plaintiff does currently reside on Lot 21 with his wife and children. What is not clear is when the Plaintiff moved to Lot 21 at Vunikoka from Navaqiqi, under what circumstances and the circumstances under which the house on Lot 21 was erected.

It is not disputed that the deceased became registered proprietor of Lot 21 on 3 February 1992. The previous registered proprietor was Narain Construction Company Limited having been registered as such on 7 February 1986. There is an entry on the title to indicate that Receivers were appointed in June 1987.

There is no material on the Certificate of Title nor is there any material before the Court to indicate that the deceased had any legal interest in Lot 21 prior to February 1992. I must therefore conclude that Chandra Prabha was not in a position to give permission for or to request that the Plaintiff move onto or relocate to Lot 21 prior to that date. The expression "nemo dat qui non habet" (no one gives who possesses not) is therefore applicable in this case. There was no material before the Court to indicate when the deceased acquired an equitable interest in Lot 21 pursuant to any contract of sale.

Furthermore, even if there was in existence a receipt dated some time in 1986 in the sum of $9,500.00 being in respect of the purchase price, and a contract in writing in respect of the same, thereby creating an equitable interest in Lot 21, there was no material before the Court that indicated that it was a term of that agreement that the deceased was entitled to possession and/or occupation pending transfer and registration. In any event there was no receipt or contract document in evidence.

Certainly, the witness Ms Matakibau did give evidence supporting the Plaintiff in the sense that she stated that when she and her family moved into the deceased’s residence the Plaintiff and his family were staying in a house on Lot 21. However her evidence was that she did not move into Chandra Prabha’s house until about 1995 which was some three years after Chandra Prabha became the registered proprietor of Lot 21.

I find that the Plaintiff and his family did not move to Lot 21 until some time after 3 February 1992. It follows that I accept the evidence of the First Defendant that Lot 21 was vacant land prior to February 1992.

This conclusion is not inconsistent with the finding concerning the relationship between Chandra Prabha and the Plaintiff having commenced in 1981. There was evidence before the Court that the distance between Navaqiqi and Vunikoka was only about half a kilometer. The Plaintiff admitted in evidence that before he and his family moved onto Lot 21 (whenever that was) he used to travel to and from his home to Chandra Prabha’s house using his van.

In his evidence the Plaintiff stated that it was the suggestion of Chandra Prabha that he should pull down his house at Navaqiqi and bring it to Lot 21. He said that he then hired a dozer from Roop Singh at a cost of $1500 to clear Lot 21. He then dismantled his home and paid a Jag Deo to move the material at a cost of $150 for each of five trips being a total of $750. The Plaintiff described his house at Navaqiqi as being a wooden house with bamboo outside consisting of four bedrooms. When it was re-assembled on Lot 21 it was modified to consist of three bedrooms and a kitchen. At that time all his children were living at home. The Plaintiff did not produce any receipts to establish these amounts. He also stated in his evidence that he did not pay any rent to Chandra Prabha once he moved into his re-assembled house on Lot 21.

This evidence was in general terms consistent with the facts that were pleaded in his Amended Statement of Claim.

However, in his affidavit sworn on 22 July 2005 (some nine months before the Statement of Claim was filed) in support of his application for an interlocutory injunction the Plaintiff explained the circumstances of his moving to Lot 21 as follows:

"10. That in or about the year 1986 Chandra Prabha requested me to build a house on the piece of land contained in Lot 21 on Certificate of Title 14368 which was located adjacent to where she lived.

11. That upon her request in 1986 I constructed a two bedroom house consisting of wood and iron, a pit toilet and a lean-to bathroom. In or about 1991 I added an extra bedroom and constructed a flush toilet and a concrete bathroom. That one of the two bedrooms was rented out and the proceeds of the rent I collected and gave to Chandra Prabha.

There is no reference in the affidavit to the house that he built on Lot 21 being his dismantled home from Navaqiqi. There is no reference to preparing or clearing the land on Lot 21. Nor is there any reference that he had dismantled his residence at Navaqiqi at the request of the deceased.

In support of her striking out application the First Defendant stated in her affidavit sworn on 14 November 2005 in paragraph 3 that Chandra Prabha gave a contract to the Plaintiff to build a residential house on Lot 21 and that the cost of construction was paid by Chandra Prabha.

In his answering affidavit sworn on 10 January 2006 the Plaintiff has changed his position and in answer to the First Defendant’s claim stated:

"3. As to paragraph 3 of Lalita’s affidavit I say that upon request of Chandra Prabha I dismantled my 30 feet by 20 feet dwelling consisting of two bedrooms, a kitchen and a sitting room and relocated and constructed the same on Lot 21 on CT. 13368. I also constructed a pit toilet and a lean-to bathroom. Later I added an extra bedroom and constructed a flush toilet and a concrete bathroom. All this was done at the request of Chandra Prabha and with her full knowledge. The cost of relocation and the construction of the dwelling were borne by me. I am still paying for the cost of the materials that I purchased."

There are obvious inconsistencies between this paragraph and the paragraph in his earlier affidavit and inconsistencies between the affidavit material and the Plaintiff’s oral evidence. The particulars in the Plaintiff’s Statements of Claim reflect the substance of the details in the second affidavit.

The nature of the Plaintiff’s tenure of the land upon which his house was erected at Navaqiqi was not raised in the evidence.

In her Defence and in her evidence the First Defendant claimed that the house on Lot 21 was constructed by the Plaintiff at the request of Chandra Prabha and was paid for by Chandra Prabha as also were the subsequent renovations and extensions.

The First Defendant stated that the Plaintiff was renting the house from Chandra Prabha. In cross-examination she stated that the Plaintiff was paying rent of $200 per month. She denied that he had moved his house from Navaqiqi. She stated that the house on Lot 21 was built in about 1996 or 1997. She could not recall what year it was that he subsequently moved into the house. She stated that although she had given her bank account details to the Plaintiff, she had not received any rent since the death of Chandra Prabha.

On the balance of probabilities I find it to be more likely that the house on Lot 21 was constructed some time after 1992 by the Plaintiff at the request of the deceased and paid for by her. I also find that the subsequent extensions were also paid for by Chandra Prabha. I find that the Plaintiff and his family subsequently moved into the house under an informal tenancy arrangement whereby the Plaintiff paid rent of $200 per month to Chandra Prabha. I find that this was the arrangement that existed from some time after 1992 upon the completion of the house on Lot 21 up until the time of the death of Chandra Prabha in December 2002.

The Plaintiff called his wife and his brother-in-law to give evidence in support of his many claims concerning these issues. However the Court has concluded that the weight to be attached to their evidence was limited due to their proximate relationship to the Plaintiff. Furthermore, the fact that the First Defendant, by letter dated 12 August 2003 from Patel and Sharma (her then employer) offered to sell Lot 21 to the Plaintiff for $30,000 does not affect any of the above findings of fact. The Plaintiff did not respond to the offer.

I also accept the evidence given by the First Defendant that at the time of her death Chandra Prabha left an estate valued conservatively at $115,000.00. This consisted of Lot 21 and Lot 22 valued at about $50,000 each together with $9000 in a fixed deposit account and between $7000 and $8000 in a savings account. There was also a third block of land at Daku that had been registered in the deceased’s mother’s name and which her mother had left to the deceased.

Under these circumstances and in the absence of any documentary material to support his claim, I reject the claim by the Plaintiff that he spent $15,000 on Chandra Prabha for her expenses.

The question now for the Court is to determine whether on the above findings of fact a declaration should be made that Chandra Prabha held Lot 21 on trust for the Plaintiff or that the Plaintiff has a proprietary right in the said land.

In the period after she had become registered proprietor of Lot 21 in 1992 until her death in December 2002, Chandra Prabha had not transferred the land to the Plaintiff and nor had she executed any trust deed in his favour. There was no reference in her Will to any devise of Lot 21 to the Plaintiff. The document dated 12 November 2002 was not in evidence at the trial and to the extent that a copy was exhibited to an affidavit, does not add a great deal of weight to the Plaintiff’s case.

The question then becomes whether the relationship that existed from 1981 up to the death of Chandra Prabha in December 2002 established a constructive trust or proprietory estoppel (if the Plaintiff can demonstrate that he has suffered detriment).

Perhaps not surprisingly, Counsel for the Plaintiff in his written closing submissions makes no reference to these claims. Instead the submission addresses only the "alternative" claim for restitution for unjust enrichment. As this is the only aspect of the Plaintiff’s claims that has been addressed substantively the Court proposes to consider that claim first.

There is a difference between a claim for restitution on the basis of unjust enrichment and a claim based on principles founded on equity. In determining the Plaintiff’s claim for restitution the question is whether the First Defendant has acquired possession of a benefit which, in fairness, she should give back to the Plaintiff. If the First Defendant is allowed to keep that benefit can she be said to be unjustly enriched at the Plaintiff’s expense. The issue is not so much a question of compensating the Plaintiff for whatever loss he has suffered, but rather it is a question of taking from the First Defendant whatever enrichment she has received. Equitable compensation by contrast measures the loss suffered by a plaintiff and requires a Defendant to make good that amount (See Equity and Trusts, (Sixth Edition) Alastair Hudson at page 1169).

The principle of unjust enrichment presupposes three components. First, the defendant must have been enriched by the receipt of a benefit. Secondly, that benefit must have been gained at the Plaintiff’s expense. Thirdly, it would be unjust to allow the defendant to retain that benefit. (See The Law of Restitution Goff and Jones (Fifth Edition) at page 15).

The Plaintiff submits that the Defendant has been enriched by the receipt of two specific benefits. The first benefit is said to be the work undertaken in 1981 by the Plaintiff on the deceased’s house. This was work done by the Plaintiff at the request of the deceased on the house situated on Lot 22 which was owned and occupied by the deceased and her sister and mother at the time. It was whilst the Plaintiff was undertaking this work that he claimed that his relationship with the deceased started.

However these facts were not pleaded in the Amended Statement of Claim. The only relevant fact that was pleaded was that the Plaintiff and the deceased "lived together in a de facto relationship since 1981" (see paragraph 4). There were no facts pleaded to the effect that the Plaintiff performed work on the deceased’s home in 1981 at the request of the deceased. The evidence given at the hearing about this work was admitted on the basis that it was relevant to the circumstances under which the relationship had commenced. As it had not been pleaded as part of the Plaintiff’s claim, none of the witnesses were cross-examined on this aspect of the evidence. There was no reference to any of these matters in the agreed facts in the Pre-Trial Conference Minutes.

Furthermore, it was a benefit initially received by the deceased some 24 years before the proceedings were commenced against the First Defendant.

This part of the Plaintiff’s submission can only be regarded as an afterthought and is rejected.

The second benefit it is submitted by the Plaintiff arises as a result of the alleged relocation by the Plaintiff of his house onto Lot 21 and "the renovation and construction of the house and the alterations done to it". There appears also to be an inference in the submission that the First Defendant’s benefit included the land itself as a result of the devise of Lot 21 to her under the deceased’s Will.

In so far as the land is concerned, the requisite formalities appear to have been observed. The deceased purchased Lot 21 and became registered proprietor in 1992. There was a Will, the validity of which was not challenged. Probate has been granted to the First Defendant. There was no challenge to the grant of probate. Title to Lot 21 has been transferred to the First Defendant. Whatever may be the basis of the Plaintiff’s claim to the land, it clearly is not by way of unjust enrichment.

The Plaintiff’s further claim is that he has improved Lot 21 and that those improvements were requested by, or freely accepted by the deceased or that she acquiesced in what he did. However the earlier findings of the Court are to the effect that the deceased (and through her, the Defendant) did not receive any gratuitous benefit in the form of improvements from the Plaintiff. The Court’s findings are to the effect that the deceased requested the Plaintiff to build a house on the land some time after she purchased Lot 21 in 1992. The Court has accepted the First Defendant’s evidence that the deceased paid the Plaintiff to build the house and that he and his family subsequently occupied the house as rent paying tenants.

Whilst it is clear that the First Defendant has received the benefit of all the improvements to the land, that benefit was received as a result of the devise of Lot 21 to the Defendant under the deceased’s Will. The house and the improvements were purchased and paid for by the deceased and were not gratuitously received from the Plaintiff.

Although not addressed in the closing written submissions, the Plaintiff claimed equitable relief in the form of a constructive trust and a declaration that the Plaintiff has a proprietary right in the said land.

Where there is no express declaration of a trust, it is necessary to determine whether there existed a common intention of the parties concerning the equitable ownership of the land. In a case such as the present where the legal title was held in the deceased’s name alone, the presumption is that the deceased was the sole owner of the equitable interest.

However that presumption may be rebutted. For instance, if the evidence established that there was an agreement, arrangement or understanding between the Plaintiff and the deceased as to the beneficial ownership of the land, then the Court would give effect to that common intention by means of a constructive trust or by means of a proprietary estoppel if the Plaintiff had suffered detriment.

Furthermore in the event that the Plaintiff had contributed to the purchase price of the land and/or to the improvements or any other financial contribution, effect would be given to the common intention of the parties by way of a constructive trust or proprietary estoppel.

Proprietary estoppel enables an equitable interest to be granted to a person who has been induced to suffer detriment upon reliance on a representation that the Plaintiff would acquire ownership of the land as a result. Under the remedy the court may award one of a number of rights ranging from freehold title through to merely equitable compensation in money.

A recent development in the law that applies to cases such as the present is an approach based on avoiding unconscionability if the First Defendant were permitted to deny the Plaintiff an equitable interest in the land. This approach looks for an agreement between the parties and then examines the entire course of dealings between the parties. The aim is to reach a fair result and to supply the parties with a common intention if that is necessary. (See Equity and Trusts supra at pages 631 – 632).

I am not satisfied that there was a common intention on the part of the parties that the Plaintiff would acquire an interest in Lot 21 once it had been purchased by the deceased. I am satisfied on the balance of probabilities that the deceased purchased Lot 21 from her own resources without any financial assistance from the Plaintiff. I am satisfied that some time after 1992 the Plaintiff built a house on Lot 21 at the request of and paid for by the deceased. I am satisfied that some time after the house was completed the Plaintiff and his family moved into the house on Lot 21 and did so as tenants paying rent to the deceased. The relationship that had commenced some time in 1981 was adulterous in nature. It had been prolonged by the Plaintiff and had been condoned by the Plaintiff’s wife for a purpose to which this Court will not give effect. Furthermore, I am satisfied that there was no agreement between the Plaintiff and the deceased as to the ownership of Lot 21.

The facts of this case can be distinguished from cases such as Baumgartner v. Baumgartner [1987] HCA 59; (1987) 164 CLR 137 where it was held that a constructive trust existed to prevent on partner from unconscionably retaining the benefit of the other’s contributions.

In summary, I find that there was no express declaration of trust nor was a constructive trust created. Proprietary estoppel as a remedy has not been established as the Plaintiff has not shown that he has suffered detriment . There has not been any unjust enrichment on the part of the First Defendant that would enable the Plaintiff to claim restitution. Under the circumstances unconscionability does not arise as the evidence has not established the existence of a relationship of any description, financial or otherwise, that would entitle the Plaintiff to the equitable relief claimed.

As a result the Plaintiff’s action against the First and Second Defendant is dismissed.

Although counsel for the Second Defendant appeared from time to time during the interlocutory proceeding, there were no pleadings and no documents filed and there was no appearance at the trial by or on behalf of the Second Defendant.

In the event that the interlocutory injunction granted on 26 July 2005 in favour of the Plaintiff is still in effect, I direct that it be now discharged.

I order that the Plaintiff pay the First Defendant’s costs on a party-party basis to be agreed and if no agreement to be taxed. There will be no order as to costs so far as the Second Defendant is concerned.

High Court of Fiji

Sami v Wati [2010] FJHC 279; HBC35.2005 (7 June 2010)