Naidu v Naidu [2011] FJHC 239; HBC180.2010 (29 April 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 180 OF 2010

BETWEEN :

VELLAIDAN NAIDU
son of Govind Samy of Nawaicoba, Nadi, Cultivator.
Plainitff

AND

MADAN NAIDU
son of Ranga Samy Naidu of Nawaicoba, Nadi, Police Officer.
Defendant

Before : Master Anare Tuilevuka
Counsel : Messrs Pillai Naidu & Associates, Nadi.
Rams Law, Nadi.

Date of Ruling : 29th April 2011

RULING

INTRODUCTION

[1]. The plaintiff (“Vellaidan”) is seeking an Order under section 169 of the Land Transfer Act (Cap 132) to eject the defendant (“Madan”) from a certain portion of his land.

[2]. The land in question is described as Agricultural Crown Lease No. 10606 being Lot 54 on DP 2961. It is 4.871ha in size. The land was originally crown land schedule B.

[3]. On 30th November 2000, the land reverted to native ownership pursuant to section 8 of the Native Lands Trust Act No. 12 of 2002 under dealing number 532842 dated 23rd October 2003 (“lease”). It now vests in the Native Land Trust Board.

[4]. Vellaidan acquired the lease in December 1987 for a term of 30 years. This is evident from the lease title annexed to his affidavit.

[5]. Madan opposes the application. He says in his affidavit that he has been living on a portion of that land for some 34 years now. He came first came to live on the land when Vellaidan “allocated” a parcel of the land to his father, Ranga Samy Naidu (“Ranga”) in 1967 to come and live there and help cultivate it.

[6]. Hence, it appears that Vellaidan had been occupying the land for some time well before a formal lease in his favour came into existence.

[7]. Vellaidan and Ranga are in fact brothers. They are originally from Vitogo in Lautoka. In 1967, Ranga moved from Vitogo to Tavua to live with his in laws shortly after he got married. He started a family there. As for Vellaidan, he moved from Vitogo to reside in Nawaicoba in Nadi. Sometime in 1976, Ranga moved his young family from Tavua to reside in Nawaicoba. I gather this happened after the brothers spoke. Madan has since virtually grown up on the land having resided there for some 34 years now.

[8]. Vellaidan admits that Ranga had assisted him in cultivating the land during the time that he lived on the land. However, he says he has paid Ranga for every work done in cultivating the cane farms.

[9]. The parties are at slight variance as to the arrangement between Vellaidan and Ranga that saw Ranga move his family from Tavua to Nawaicoba.

[10]. Madan says the move to Nadi was prompted by Vellaidan’s promise that he would “allocate” a quarter acre of the land to Ranga if he came to help him cultivate it.

[11]. Vellaidan’s version is somewhat more spicy. He says:

Ranga “was expelled from Tavua by the Tavua Magistrate’s Court sometime in 1976 for larceny and hence he asked me for a piece of land to enable him to move to Nawaicoba Nadi and I agreed to give him shelter as he was my brother...” (sic).

[12]. Vellaidan highlights that “Ranga has not been in occupation of the said lot for the last ten years” and submits that whatever consent and/or authority he may have given to Ranga, would have lapsed accordingly. He says that – in any event, he gave no such consent or authority to Madan to occupy the land.

[13]. Madan also and Ranga, together, have spent money constructing a four (4) bedroom house and a temple on the land. They have also carried out vegetation work thereon.

[14]. Throughout their years of occupation, Vellaidan had consented to various things including electricity and water connection to their house, an extension to the house in 1992 which cost Madan some $15,000, and also to the construction of a temple on the land which cost Madan some $12,000.

[15]. Madan annexes to his affidavit a document titled “Authority to Occupy Property” dated 31st October 2010. This “authority” is written by Ranga. The first part of the document appears to be an authority to Madan to occupy the ¼ acre lot in question. The second part purports to be an undertaking by Ranga to indemnify Madan against any claims or a suit arising from the latter’s occupation of the land.

[16]. I accept as fact that Vellaidan did give Ranga authority to occupy the lot. I also accept as fact that Ranga has not been in occupation for the last ten years. That appears to be consistent with the fact of the authority written by Ranga (which I also accept as fact) to Madan to occupy the dwelling house in question (see paragraph 11 above).
[17]. Various issues arise from this scenario:

• (a) firstly, whether any interest in the land was thereby created (if any) when Vellaidan “allocated” the ¼ acre in question to Ranga? If so – what is the nature of that interest?
  
• (b) secondly, assuming that Ranga did have a valid interest in the land, whether that interest abated at the point when Ranga left the land to reside in his own adjoining land?
  
• (c) thirdly, is that interest of such a nature that it is capable of being “transferred” by Ranga to Madan
  

[18]. It is not in dispute in this case that Vellaidan is the last registered proprietor of the land in question.

THE LAW

[19]. Section 169 of the Act provides as follows: -

The following persons may summon any person in possession of land to appear before a judge in chambers to show cause why the person summoned should not give up possession to the applicant:-

(a) the last registered proprietor of the land;

(b) a lessor with power to re-enter where the lessee or tenant is in arrear for such period as may be provided in the lease and, in the absence of any such provision therein, when the lessee or tenant is in arrear for one month, whether there be or be not sufficient distress found on the premises to countervail such rent and whether or not any previous demand has been made for the rent;

(c) a lessor against a lessee or tenant where a legal notice to quit has been given or the term of the lease has expired.

[20]. Section 172 of the Act provide as follows:

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.

[21]. Once it is shown that Madan qualifies under any of the three limbs of section 169, the burden shifts immediately to Madan under section 172 to show evidence of some right to possession strong enough to preclude the granting of an order for possession.

[22]. This does not mean that Madan must prove conclusively a right to remain in possession. All that is required of him is some tangible evidence establishing a right or supporting an arguable case for such a right (see the Supreme Court decision in Morris Hedstrom Limited v. Liaquat Ali (Action No. 153/87 at p2)).

[23]. In this case, Madan alleges a right of possession that rests on: firstly, the fact that the land was “allocated” to his father by Vellaidan; secondly, flowing from (a) above, the purported authority of Ranga to Madan to occupy the land in question; and thirdly, the fact that Madan has – together with Ranga – carried out some improvement on the land encouraged by Vellaidan.

[24]. The nature of the arrangement between Vellaidan and Ranga is not entirely clear to me.

[25]. Madan’s account of it is somewhat wishy washy. Madan would not have been privy to the arrangement between Ranga and Vellaidan as most of it would have happened when Madan was very young. Furthermore, Madan’s affidavit does not even acknowledge Vellaidan as his source of information on this point. The letter of authority (see paragraph 11 above) does nothing to bridge that evidentiary gap. And because of the gap(s) in evidence, it is extremely difficult for me, as a matter of law – to reach any conclusion on whether or not Ranga possesses that authority to give Madan.

[26]. The questions I ask are: whether the gap(s) is/are a reflection of Madan’s inability to show cause in terms of section 172 – in which case, I should grant an order for immediate vacant possession in favour of Vellaidan, or, whether the gap(s) denote areas which can only be filled by viva voce evidence at a trial – in which case, I should dismiss the summons.

[27]. On both Madan’s and Vellaidan’s account, the following appear to be established:

• (i) Vellaidan and Ranga are brothers. That fact played a major role in cementing their “arrangement”.
  
• (ii) over the years, both Madan and Ranga had carried out some improvement on the land.
  
• (iii) notably, as far as Madan is concerned, they had sought out and obtained Vellaidan’s prior consent before any improvement.
  

[28]. This may be evidence that Vellaidan had encouraged and acquiesced in their carrying out the improvements. But it was all done presumably without any regulatory consent.

[29]. Mr. Ram has made submissions on the applicability of the doctrine of proprietary estoppel in favour of his client - citing Mohammed v Nasir Khan (1994) FJHC 120; Subashni Ramlu v NLTB (2008) FJHC 145.

[30]. In Jims Enterprises Ltd v Mara [2010] FJHC 35; HBC139.2009 (5 February 2010), Madam Justice Wati, cited the following passage of Mr. Justice Jitoko’s decision in Civil Action No. HBC 106 of 2004 between Jims Enterprises Limited v. Marika Vosawale Mara & Catherine McGoon Mara

The doctrine of proprietary estoppel is applicable where, according to Handbury and Mandsley Modern Equity (11th Ed) pp 736 – 737:

"One party knowingly encourages another to act, or acquiesces in the other’s action, 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".

Snell’s Equity (13th Ed), at para 39 – 12 states that:

"Proprietary estoppel is one of the qualification to the general rule that a person who spends money or improving the property of another has no claim to reimbursement or to any proprietary interest in the property".

Proprietary estoppel, unlike promissory estoppel, is permanent in its effect. It is capable even of conferring a right of action. For it to apply there must exist essential elements or conditions. The Court, in Denny v. Jensen [1977] NZLR 635 identified four conditions namely, at p.638.

"There must be an expenditure, a mistaken belief, conscious silence on the part of the owner of the land and no bar to the equity".

Megarry J in In re Vendervell’s Trust (No. 2) [1974] CH 269 describes the essential elements this way, at p. 301,

"... the person to be estopped (I shall call him O, to represent the owner of the property in question), must know not merely that the person doing the acts (which I shall call A) was incurring the expenditure in the mistaken belief that A already owned or would obtain a sufficient interest in the property to justify the expenditure, but also that he, O, was entitled to object to the expenditure. Knowing this, O nevertheless stood by without enlightening A. The equity is based on unconscionable behavior by O; it must be shown by strong and cogent evidence that he knew of A’s mistake, and nevertheless dishonestly remained willfully passive in order to profit by the mistake".

[31]. I have some misgivings about whether the doctrine of proprietary estoppel can apply in this case such as to confer to Vellaidan a proprietary interest in the land in question (or at least a portion of it).

[32]. I say that having noted two essential points: firstly, that Ranga has not been in occupation for the last ten years and, with that, will have abandoned any claim on proprietary estoppel. Secondly, it is hard to see how any right that might have accrued to Ranga, had he stayed on, would subsist through Madan once Ranga moves on. That right should have been asserted whilst Ranga was still in occupation.

[33]. For the record, I have also considered the case of Reddy v Krishna [2009] FJHC 221; HBC114.2008L (9 October 2009), where Mr. Justice Inoke reviewed the Fiji Court of Appeal decisions in Soma Raju v Bhajan Lal [1976] 22 FLR 163 and in Azmat Ali v Mohammed Jalil & NLTB [1986] FCA; Civ App 111 of 1985 which affirm that the provisions of ALTA override the provisions of the Land Transfer Act. That led to the conclusion that the High Court lacks jurisdiction to entertain a section 169 application to evict a tenant who was occupying a piece of ALTA land.

[34]. That case might have helped Ranga if the section 169 application in this case had been mounted against Ranga, and if Ranga was still in occupation, and if Ranga in fact had the benefit of having an instrument of tenancy in his favour declared by the Agricultural Tribunal.

[35]. I do not see how Reddy v Krishna helps Madan in this case. Notably – in that case, the tenant in question had been given an instrument of tenancy issued by the Agircultural Tribunal under ALTA. The section 169 application was premised on the fact that he had been in arrears on his rent. Inoke J held that the plaintiff should have pursued eviction proceedings under ALTA and not under the Land Transfer Act.

[36]. As stated, in this case, there is nothing before me to suggest that Madan had an instrument of tenancy issued to him by the Agricultural Tribunal. Nor is there any evidence that the Ranga was ever issued one. If anything, although the defendant's father had occupied and farmed the land for many years – which may have qualified him for a declaration of tenancy under ALTA – that right would appear to have subsided the moment he ceased occupation. And it has been ten years now since he ceased occupation.

[37]. For all the above reasons, I grant order in terms of the application. The defendant is ordered to vacate the property, Lot 54 on DP 2961, within 21 days of the date of this ruling. I also award costs to the plaintiff in the sum of $450-00 to be paid in 21 days.

........................................
Anare Tuilevuka
Master

At Lautoka
29th April 2011