Buanasolo v Khan [2011] FJHC 382; HBC355.2001L (13 July 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 355 of 2001L

BETWEEN:

LIVIA BUANASOLO
1st Plaintiff

AND:

PRAKASH
2nd Plaintiff

AND:

ALI HASSAN KHAN
Defendant

JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Dr M S Sahu Khan (Plaintiffs)
Mr H A Shah (Defendant)

Solicitors: Sahu Khan & Sahu Khan (Plaintiffs)
H A Shah Esq (Defendant)

Dates of Hearing: 31 November 2010, 1 and 3 February 2011

Date of Judgment: 13 July 2011

INTRODUCTION

[1] The first plaintiff represents about 400 members of a social group called the “Ilami Group”. They have built houses and live on part of the land now owned by the defendant. The second plaintiff has also built a house and lives on another part of that land. The defendant tried to evict the plaintiffs who have brought this action for orders declaring their rights to the land and other relief.

CASE HISTORY

[2] The Writ of Summons was filed on 13 November 2001. On 3 December 2001, the defendant filed an application to strike out the plaintiffs’ claim first returnable on 22 February 2002. The application was then set down for hearing on 11 July 2002. It was noted by the Judge before whom the application was brought, that the application was “aimlessly adjourned” many times over the next three years and eventually came to be set down for hearing on 1 April 2005. On that day, counsel for the plaintiffs was not able to proceed with the hearing so it was agreed by both counsels that the application was to be disposed of by written submissions. No submissions were filed. On 23 May 2005, the Judge considered the application and dismissed it as being unmeritorious. The lack of interest in the application may be explained by what happened on 9 February 2005 when the defendant obtained an order against the plaintiffs, in their absence, restraining them from intimidating the defendant and from further building on the land. The defendant filed his defence and counter claim on 13 December 2005. The plaintiffs’ reply and answer were filed on 28 March 2006. The hearing was then set for 16 and 17 April 2007. Counsel for the plaintiffs took ill on 16 April 2007 so the hearing was adjourned by consent. It was rest for 25 and 26 June 2007. On 25 June 2007 both counsels agreed that the Judge determine a preliminary question under O 33 of the High Court Rules 1988, namely, “whether on the basis of paragraphs 14 and 16 of the Statement of Claim, the plaintiffs have any cause of action against the defendant who bought the land under mortgagee sale”. Directions for filing of submissions were made and the hearing of the preliminary question was set for 12 September 2007. It was rescheduled to 19 October 2007 because submissions had not been filed as ordered. Further time was given for the plaintiffs to file their submissions and the hearing reset for 16 November 2007. The ruling was supposed to be delivered on 25 January 2008 but appears to have not been delivered. Instead, the matter was transferred to the Master for pretrial directions and was called before him on 11 more occasions until it was set down on 4 December 2009 for hearing on 31 May 2010. The hearing did not proceed because counsel for the plaintiffs had to attend a funeral so the hearing was reset for 30 and 31 August 2010. The hearing commenced on 30 August 2010 and adjourned to 1 October 2010. Counsel for the plaintiffs again took ill and could not continue so the hearing was adjourned by consent to 15 and 16 December 2010. The hearing was again adjourned to 1 and 3 February 2011 for continuation. The hearing was completed on 3 February 2011 and counsels were given 14 days to file written submissions and judgment to be delivered on notice. Only the defendant’s counsel filed submissions and rather than delay the judgment further, I have decided to deliver it without the assistance of the plaintiffs’ submissions. This is the judgment.

THE STATEMENT OF CLAIM

[3] The plaintiffs allege that in about 1972, their group, the Illami Group, entered into an agreement with the previous owner of the subject land, CT 6993, for them to buy a house that was already built on the land together with the half an acre of land on which the house was built. The land is a sugar cane farm. The purchase price was $18,000. Payment of the purchase price was $10,000 cash payment and the balance was to be paid back by deduction from the plaintiffs’ wages. The plaintiffs were to work on the sugar cane farm and half of their wages were to be withheld and paid towards the purchase price. The plaintiffs also built a second building on the half acre block with the consent of the then owner of the land. The previous owners also agreed in 1982 to sell a quarter acre house site to the second plaintiff for $5,000 on which the second plaintiff built his house at a cost of $7,500. Before the defendant purchased the land in question, the plaintiffs informed him of the circumstances under which they came to occupy their portions of the land. The defendant bought the land in about May 2000 and despite the explanation, commenced eviction proceedings in the Ba Magistrates Court in 2001. The plaintiffs claim that the defendant is estopped from denying their rights to the land. They further claim that the defendant has acted fraudulently and unconscionably. They seek a declaration that the defendant is holding the land as trustee for himself and the plaintiffs, a declaration and order that the defendant is bound to transfer separate titles to their portions of the land or, alternatively, that the defendant pays to the plaintiffs $15,000 each as damages and compensation. The plaintiffs also ask for payment of $38,000 to the first plaintiffs and $7,500 to the second plaintiff being the value of improvements on the land.

THE DEFENCE AND COUNTER CLAIM

[4] The defendant says in his defence that he became registered proprietor on 30 August 2000. He denies being aware of the arrangements and agreements between the plaintiffs and the previous owners. He says the plaintiffs have been occupying his land unlawfully and without his permission. He had given the plaintiffs time to vacate and to dismantle their houses by notice dated 8 August 2001 but they have refused. Their refusal to vacate has prevented him from developing the land and has caused him loss. He seeks an order for vacant possession and damages.

THE AGREED FACTS

[5] Abubakar Moidin Koya and Mohammed Shafiq Koya and later, Siddiq Moidean Koya were the registered proprietors of the land comprised in CT 6993. The defendant became the registered proprietor on 6 April 2001. The plaintiffs were given time to vacate the land and to dismantle their houses by notice dated 8 August 2001. The defendant commenced a civil action in the Ba Magistrates Court on 24 September 2001 for vacant possession but the parties have agreed to stay that action until this case is determined by this Court.

THE PLAINTIFFS’ EVIDENCE AT THE TRIAL

[6] The first plaintiff, Livia Buanasolo gave evidence. She said the Ilami Group was formed in 1972. She is the head of the group. It was a group of iTaukei persons who moved away from their villages in search of better opportunities for advancement. She knew Abubakar Koya. She had discussions with him in 1972 to buy a home that was already on a half acre of the land. The block was not fenced. The agreed price was $18,000. They were to pay $10,000 first and the balance of $8,000 was to be paid from their wages for working on the sugar cane farm. The group was to work the land, clear the farm and harvest the cane. They were paid $5 half of which was taken for payment towards the half acre block. Abubakar agreed to give them a separate title to their block. They worked the land from 1972 and paid off the $8,000 from their wages. The group built two tin houses on the block, one was a church hall. She knows the defendant because he lives in the adjoining land. She also knew the defendant’s father. In 1996, the defendant and his father had discussions with the group about purchasing the land. She said they told the defendant and his father of how they came to be there on the land and that they had purchased the houses and the block. The defendant and his father told them that they would take the group to court. She then went and saw her lawyer who advised her to lodge a caveat. The defendant had been living next door to them over the last fifty years. In 2001, the defendant took out an action in the Magistrates Court to evict the 22 families that lived on the block. The group wants to remain on the block but if the Court refuses to grant that order they want compensation of $15,000 for the purchase of the block and $38,000 for the value of the improvements.

[7] In cross examination she said she was elected to be the head of the group. They are not educated people. There were no documents involved. The group was not registered. The group deposited the money in a Westpac bank account. She cannot recall the number of the account and she does not have any documentation. They were not given any receipts for the payments. Everything was done verbally. She knew Abubakar but not his brother Siddiq Koya and she did not know that it was his brother that was handling matters on the land. The group was also known as the “Bula Talei” tenants. Counsel for the defendant tried to lead questions to show that the plaintiffs were tenants. It was objected to by counsel for the plaintiffs on the grounds that the defendant alleged in his defence that the plaintiffs had not paid any rent. I upheld the objection. She said that in 1996 the defendant’s father wanted to buy Abubakar’s land. He bought land on the other side. She did not know of any transfer of land between the two because Abubakar died before the defendant’s father. She knew of the second plaintiff living on the land. He built his own house on his block. She did not know of the mortgagee sale of the land to the defendant. Her group worked on the land from 1972 until the time the defendant’s father tried to purchase the land. The group built the hall and the two other buildings after Abubakar died. They got permission from Mrs Abubakar and Mrs Koya. She remembers going to the Town Council and having the plans approved but she does not have the plans now. She says the group only wants the money and not the houses. The group will vacate if they are paid the money they spent from 1972 to 1996.

[8] The next witness for the plaintiffs was Arvin Kumar Singh. He is a retired school teacher. He has known the plaintiffs since they came to Ba in the early 1970s. His father was the gang sirdar. His father brought the group to harvest cane. There was a shortage of harvesters and they were brought to stay on the land on the condition that they harvested the cane. Their numbers grew over the years. The group first settled in their house because no one could provide accommodation. They stayed there for three years. His father called a meeting and the Koyas offered their land and the group resettled there. The group paid for half of the block. He was involved in the payments. He was educated and his father let him do the books for the group. The group worked on the land. The second plaintiff moved on to his block and built his house in 1983-4 and is still living in it.

[9] In cross examination he denied that his evidence was a fabrication. There were records from 1972 but he cannot produce them. Only the records for the last 5 years can be produced. The plaintiffs have been staying on the land all this time. It was a condition for harvesting that the farmers provide accommodation for the harvesters. The rate at that time was $5 per ton of cane harvested and the labour rate was $6 per day. The first plaintiff did not harvest cane but she cooked and washed for the whole group. These people were very hardworking people. After 1989 he did not know what happened to the group. He was adamant that the Koyas gave the house to the group. His father died and they left in 1985. The second plaintiff came to the farm as a young boy and worked his way up. The house which he built before 1989 was a good house made of wood, iron and concrete.

[10] The third witness was the second plaintiff, Prakash. Before going to Ba he lived in Suva. He went to Ba in 1972 with his father to work on the sugar cane farm of Abubakar. Abubakar gave them a small home site. They stayed there from 972 to 1982 then moved to another part of the land where he had built a house. His father died in 1981. The house cost him about $7,500 to build. The plan was approved before he built. The application to build was signed by Sadiq Moidin Koya. He paid $5,000 from half of his wages from harvesting cane. No receipts or other documents have been issued. He said on one occasion the defendant and his father came to discuss about buying the land. He told them that he had bought his quarter acre block and the defendant’s father told him that he could stay on the land. He saw his lawyer who advised him to lodge a caveat. But the defendant’s father told him not to do that and he could stay on the land.

[11] In cross examination he said after 1981 all cane cutting agreements were kept in Mr Siddiq Koya’s office which got burned in a fire. He had cut cane for Mr Koya for 11 years. He only stopped because Mrs Koya asked him to in 1989 but he was never told to move out of the land. He has continued to stay on the land and has never left it.

[12] The plaintiffs called a registered valuer who tendered valuations done by him for the value of improvements on the Ilami Group’s block of $45,000 and the second plaintiff’s improvements valued at $15,000. These did not include the value of the land.

THE DEFENDANT’S EVIDENCE AT THE TRIAL

[13] The defendant gave evidence. He is the registered proprietor of CT 6993 as from 31 May 2000 according to the memorial noted on the certificate of title. He bought the land on mortgagee sale. He responded to the advertisement in the Fiji Times and was the successful tenderer. He never told the plaintiffs to stay on the land before he bought it. He did not discuss the lodging of a caveat with the plaintiffs or their solicitors. His father entered into a sale and purchase agreement with Mrs Koya who was the executrix and trustee of the estate of Siddiq Moidin Koya (deceased) on 7 November 1996. Clause 11 of the agreement provided that “it shall be the responsibility of the vendor to pay for and evict Prakash the person who is presently occupying the labourer’s shack or dwelling on the said land”. His father is now deceased. He does not know why his father did not proceed with the purchase. He gave notice to the plaintiffs to vacate but they did not so he sued them in the Ba Magistrates Court. Then the plaintiffs sued him in this Court. He has been living on the adjoining property since childhood and he knew that Abubakar and his family lived in the house that was on the land. The first plaintiff lived in another building. The group moved into that house after Mrs Abubakar was evicted by Mrs Koya. He wants the plaintiffs evicted because they are a hindrance to his business and development plans for the land. He is willing to let them remove the buildings. The plaintiffs never paid any rent.

[14] In cross examination he said he did not know who built Prakash’s house. The other two concrete houses on the land were built by Abubakar before 1970. He was adamant that Abubakar told him that. They were built before he was born. He did not know how the plaintiffs came to occupy these houses. He did not know of the circumstances before he bought the land. He denies he and his father having discussions or negotiations with the plaintiffs when his father wanted to buy the land in 1996. He denies the contents of his affidavit sworn on 20 September 2001 and filed in the Ba Magistrates Court. The affidavit said:

“13. My father had a desire to purchase the land mentioned herein and had future plans to build a large Service Station on it.

14. As such we started negotiating for this land.

15. It was only in August 2000 we managed to get the land and it was transferred into my name.

16. I now wish to carry out my father’s wish to build the service station.

17. I found out that the defendants had unlawfully built two timber and tin structures on the land.

18. There are two houses on the property, which we had bought together with the land under mortgagee sale. This house now belongs to me and is a concrete structure.

ANALYSIS OF THE EVIDENCE AND FINDINGS OF FACT

[15] I accept the plaintiffs’ evidence that they were given permission by the previous registered proprietors, Abubakar and Siddiq Koya, to build and stay on the land in their respective blocks. I accept that the agreements between the Koyas and the plaintiffs were for the plaintiffs to pay for their blocks by cash payment and the balance to be paid from their harvesting wages. I also believe and accept that the Ilami Group paid $15,000 for their half acre block and the second plaintiff paid $5,000 for his quarter acre block and in return they were to own the houses and their blocks and were to remain on the land as unregistered owners. Their evidence was corroborated by the evidence of Arvin Kumar Singh, whom I find to be an independent and credible witness. The absence of documentary records has been satisfactorily explained as having been destroyed by fire or lost due to the passage of many years and I am satisfied that they existed at one time and should not result in an adverse finding against the plaintiffs. On the other hand, I find the defendant a rather evasive and self serving witness. He was not born when the Ilami group moved on to the land and was only a young child when Mr Prakash’s father came to live on the land. I am not prepared to accept his evidence on these arrangements. The arrangements and agreements entered into were convenient not only for the Koyas but for all the farmers in the vicinity because there were ready, willing and able harvesting labourers available.

[16] I find it difficult to accept that the defendant did not know of the circumstances of the plaintiffs coming to be on the land and of the arrangements and agreements that were entered into by the Koyas and the plaintiffs. His oral evidence is inconsistent with his affidavit evidence and his instructions to this lawyer. He had lived next door all of the 46 years his life. I do not accept that he did not know of or involve himself in the negotiations for the 1996 purchase of the land with his father. He was 32 years old then. I therefore find that the defendant knew of the arrangements and agreements between the plaintiffs and the previous owners before he purchased the land.

[17] I also find that the defendant and his father told the plaintiffs, during those negotiations, that they could stay on the land if they were not to lodge caveats to protect their interests.

[18] The plaintiffs now claim that they just want compensation for the value of their blocks and the improvements thereon and are prepared to move out if they are paid such compensation. The question is therefore, should the defendant be bound by the arrangements and agreements between the plaintiffs and his predecessors in title?

THE LAW

[19] The plaintiffs plead estoppel against the defendant by his fraudulent conduct in promising to the plaintiffs that they could remain on the land if they were not to lodge caveats. The leading case is the landmark decision in Central London Property Trust Ltd v High Trees House Ltd [1946] EWHC KB 1; [1947] KB 130 and I quote from the judgment of Lord Denning. After referring to the old common law that a deed could not be varied by an agreement by parol (whether in writing or not) but only by deed, His Lordship explained the law as follows at pp 133-4:

Equity, however stepped in, and said that if there has been a variation of a deed by a simple contract (which in the case of a lease required to be in writing would have to be evidenced by writing), the courts may give effect to it as is shown in Berry v Berry [1929] 2 KB 316. That equitable doctrine, however, could hardly apply in the present case because the variation here might be said to have been made without consideration. With regard to estoppel, the representation made in relation to reducing the rent, was not a representation of an existing fact. It was a representation, in effect, as to the future, namely, that payment of the rent would not be enforced at the full rate but only at the reduced rate. Such a representation would not give rise to an estoppel, because, as was said in Jorden v Money [1854] 5 HLC 185, a representation as to the future must be embodied as a contract or be nothing.

But what is the position in view of developments in the law in recent years? The law has not been standing still since Jorden v Money [1854] 5 HLC 185. There has been a series of decisions over the last fifty years which, although they are said to be cases of estoppel are not really such. They are cases in which a promise was made which was intended to create legal relations and which, to the knowledge of the person making the promise, was going to be acted on by the person to whom it was made, and which was in fact so acted on. In such cases the courts have said that the promise must be honoured. The cases to which I particularly desire to refer are: Fenner v Blake [1900] UKLawRpKQB 9; [1900] 1 QB 426, Re William Porter & Co Ltd [1937] 2 All E R 361 and Buttery v Pickard [1946] WN 25. As I have said, they are not cases of estoppel in the strict sense. They are really promises – promises intended to be binding, intended to be acted on, and in fact acted on. Jorden v Money can be distinguished, because there the promisor made it clear that she did not intend to be legally bound, where as in the cases to which I refer the proper inference was that the promisor did intend to be bound. In each case the court held the promise to be binding on the party making it, even though under the old common law it might be difficult to find any consideration for it. The courts have not gone so far as to give a cause of action in damages for the breach of such a promise, but they have refused to allow the party making it to act inconsistently with it. It is in that sense, and that sense only, that such a promise gives rise to an estoppel.

[20] In Barry v Heider [1914] HCA 79; (1914) 19 CLR 197 (16 December 1914), Isaacs J explained the doctrine as follows:

(3) This raises the question of the effect of Barry's conduct. Distinctions have been drawn as to whether such a case is to be solved by the doctrine of estoppel, or by the doctrine that, where one of two innocent persons has to suffer by the fraud of a third, he who, by what Lord Halsbury, in adopting the language of an American Judge, calls "an indiscretion," has enabled the third person to commit the fraud, shall bear the loss.

I see no real distinction in principle. I call them both estoppel, because the second principle simply compels the person who enabled the fraud to be committed to stand by the consequences of his own conduct and precludes him from asserting his really superior title. And I am strengthened in that view by the fact that the doctrine of estoppel in pais does not rest on the fraud or moral misconduct of the person estopped, but on the effects of his conduct upon the party claiming the estoppel. This is clearly and authoritatively brought out in a case I have on a former occasion referred to— Sarat Chunder Dey v. Gopal Chunder Laha. Lord Shand there says:—"The law of this country gives no countenance to the doctrine that in order to create estoppel the person whose acts or declarations induced another to act in a particular way must have been under no mistake himself, or must have acted with an intention to mislead or deceive. What the law and the Indian Statute mainly regard is the position of the person who was induced to act; and the principle on which the law and the Statute rest is, that it would be most inequitable and unjust to him that if another, by a representation made, or by conduct amounting to a representation, has induced him to act as he would not otherwise have done, the person who made the representation should be allowed to deny or repudiate the effect of his former statement, to the loss and injury of the person who acted on it. If the person who made the statement did so without full knowledge, or under error, sibi imputet, it may, in the result, be unfortunate for him, but it would be unjust, even though he acted under error, to throw the consequences on the person who believed his statement, and acted on it as it was intended he should do."

The Indian Evidence Act was under discussion and used the word "intentionally," and the Privy Council held that the word was introduced for the purpose of declaring the law in India to be precisely that of the law of England. Having so stated, their Lordships say:—"A person who, by his declaration, act, or omission, had caused another to believe a thing to be true and to act on that belief, must be held to have done so intentionally, within the meaning of the Statute, if a reasonable man would take the representation to be true, and believe it was meant he should act upon it. And to this view effect was given in the case of Cornish v. Abington14 H. & N., 549. and the later cases."

CONCLUSIONS

[21] In my opinion, the promise by the defendant and his father to the plaintiffs that they could remain on the land if they did not lodge caveats is a promise within the High Trees (supra) principle. The defendant should not be allowed to resile from the promise.

[22] Further, even if I am wrong in that finding, with the defendant having prior knowledge of the plaintiffs' rights of occupation before he bought the land, I think his conduct is more culpable than the plaintiffs' in not lodging caveats in the sense explained in Barry v Heider (supra) and it would be quite inequitable and unconscionable for him to evict the plaintiffs.

[23] The plaintiffs claim compensation for the value of their blocks and the improvements thereon. I think in the circumstances their claim should be allowed. They have not submitted evidence of the value of the blocks other than the purchase price which they paid.

[24] I accept the valuation reports for both plaintiffs' improvements of $45,000 for the Ilami Group and $15,000 for the second plaintiff, Prakash. I also find that the Ilami Group paid $15,000 for their block and Prakash paid $5,000 for his block. The respective compensation claims are $60,000 for the first plaintiff and the Ilami Group and $20,000 for the second plaintiff, Prakash.

[25] On payment of those sums, the improvements, including fixtures and fittings, shall belong to the defendant. The plaintiffs will only be allowed to remove their personal property.

[26] The defendant failed to adduce sufficient evidence to prove any loss and damage so his counter claim fails.

COSTS

[27] The normal rule applies so the plaintiffs are entitled to their costs which I summarily set, having regard to the history and issues raised and argued in this matter, at $1,500.

ORDERS

[28] The orders are as follows:

• (a) The defendant shall pay to the first plaintiff and the Ilami Group the sum of $60,000.
  
• (b) The defendant shall pay to the second plaintiff the sum of $20,000.
  
• (c) On payment of those sums, the plaintiffs shall vacate the land and hand over the improvements thereon, including all fixtures and fittings, to the defendant within 7 days.
  
• (d) The defendant's counter claim is dismissed.
  
• (e) The defendant shall pay the plaintiffs' costs of $1,500 within 28 days.
  

Sosefo Inoke
Judge