Wailoku Development Ltd v Rabukawaqa [2011] FJHC 612; HBC160.2011 (30 September 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 160 of 2011

IN THE MATTER
of the land comprised in
Certificate of Title No. X/1/05.6

AND

IN THE MATTER
of Section 169 of the Land Transfer Act. Cap. 131

BETWEEN:

WAIKALOU DEVELOPMENT LIMITED
a duly registered company having its office at
C/- QB Bale & Associates, Level 3 FNPF Place, Victoria Parade, Suva.
PLAINTIFF

AND:

TIMOCI RABUKAWAQA o
f Lot 7 Stage 2, Wailoku.
DEFENDANT

BEFORE: MASTER DEEPTHI AMARATUNGA

COUNSELS: Ms Salele P. for the Plaintiff
Mr Titoko S. for the Defendant

Date of Hearing: 24th August, 2011
Date of Ruling: 30th September, 2011

RULING

1. INTRODUCTION
   

1. This is an application in terms of Section 169 of the Land Transfer Act. The Defendant is in possession of the land. Plaintiff has proved that it is the registered proprietor. The burden shifts to the Defendant. The Defendant in his affidavit in opposition has alleged that he has an equitable right to stay in the property as he has build a house to stay.
   

2. FACTS
   

2. The Plaintiff has filed the certificate of title attached to the affidavit in support where the proprietor of the land as per title is the Plaintiff.The Defendant has not denied the said fact. So the ownership is proved by the plaintiff.
   
3. According to the affidavit in support the land in issue was ‘sold’ to one Joe Vatuba and a sale and purchase agreement was entered into, but the said purchaser did not pay the full amount and the sale did not proceeded to a transfer of the property.
   
4. The affidavit in support state that the Defendant was a licencee of said Joe Vatuba, but the Defendant denies that.
   
5. The Defendant in his affidavit in opposition in paragraph 6 state that the ’Defendant has strong equtable claims to the property having erected houlse(s), fence and planted crops, trees and improvements like drainage for which the Defendant must be compensated.’
   
6. No details of how he came to the land and how long he had been there and the details of any improvements including the value of that had been submitted and the only averment in the affidavit to show any right to stay is said averment contained in the paragraph 6 of the affidavit in opposition.
   

100. THE LAW AND ANALYSIS
     

7. Section 169 of the Land Transfer Act states as follows:
   

“169. 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) ..........
(c) .........”

8. The procedure under section 169 is governed by section 171 and 172 of the Land Transfer Act, Section 171 & 172 provides as follows:
   

“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”.

“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 thinks fit;

Provided that the dismissal of the summons shall not prejudice the right of the plaintiff to take any other proceedings against the person summoned to which he may be otherwise entitled.”

9. Section 172 of the Land Transfer Act states that “if a 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 and he may make any order and impose any terms he may think fit provided that the dismissal of the summons shall not prejudice the right of the plaintiff to take any other proceedings against the persons summoned to which he may be otherwise entitled.” The burden is shifted to the Defendant to satisfy the court that she has a right to possession of the land in dispute. In Morris Hedstrom Limited –v- Liaquat Ali CA No: 153/87, the Supreme Court of Fiji described the scope of the said provision.
   
10. In the case of Morris Hedstrom Limited –v- Liaquat Ali CA No: 153/87, the Supreme Court said that:-
    

“Under Section 172 the person summonsed may show cause why he refused to give possession of the land 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.”(emphasis is mine)

11. So what the Defendant has to satisfy is some tangible evidence to establish a right to stay in the property or to support an arguable case.
    
12. Defendant alleges proprietary estoppel, and state that he had done improvemts to the property by building house and fence and has also planted crops.
    
13. In Denny v Jessen [1977] 1 NZLR 635 at 639 Justice White summarized the proprietary estoppel as follows:
    

“In Snell’s Principles of Equity (27thed) 565 it is stated that proprietary estoppel is “... capable of operating positively so far as to confer a right of action”. It is “one of the qualifications” to the general rule that a person who spends money on improving the property of another has no claim to reimbursement or to any proprietary interest in the property. In Plaimmer v Wellington City Corporation (1884) 9 App Cas 699; NZPCC 250 it was stated by the Privy Council that “...the equity arising from expenditure on land need not fail merely on the ground that the interest to be secured has not been expressly indicated.”(ibid, 713, 29). After referring to the cases, including Ramsden v Dyson [1866] UKLawRpHL 7; (1866) LR 1 HL 129, the opinion of the Privy Council continued, “In fact the court must look at the circumstances in each case to decide in what way the equity can be satisfied” (9 App Cas 699, 714; NZPCC 250, 260). In Chalmers v Pardoe [1963] 1WLR 677; [1963] 3 All ER 552 (PC) a person expending money was held entitled to a charge on the same principle. The principle was again applied by the Court of Appeal in Inwards v Baker [1965] EWCA Civ 4; [1965] 2 QB 29; [1965] 1 All ER 446. There a son had built on land owned by his father who died leaving his estate to others. Lord Denning MR, with whom Danckwerts and Salmon L JJ agreed, said that all that was necessary;

“... is that the licensee should, at the request or with the encouragement of the landlord, have spent the money in expectation of being allowed to stay there. If so, the court will not allow that expectation to be defeated where it would be inequitable so to do.”(ibid, 37,449).

The general rule, however, is that “liabilities are not to be forced upon people behind their backs” and four conditions must be satisfied before proprietary estoppel applies.

14. 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. “Conscious silence” implies knowledge on the part of the defendant that the plaintiff was incurring the expenditure and in the mistaken belief that here was a contract to purchase and that here defendant “stood by” without enlightening the plaintiff. In short the plaintiff must establish fraud or unconscionable behavior. The rule based on the cases cited, is stated in Snell (op cit) 566 as follows:
    

“Knowledge of the mistake makes it dishonest for him to remain willfully passive in order afterwards to profit by the mistake he might have prevented. The knowledge must accordingly be proved by “strong and congent evidence”

15. This passage was adopted by Megarry J in Re Vandervell’s Trusts (No 2)[1974] Ch 269, 301[1974] 1 All ER 47, 74”.
    

The above, was quoted in the case of HBC 40 of 2009 in the High Court Fiji at Labasa in the case of Wilfred Thomas Peter V Hira Lal and Farasiko by Justice AnjalaWati and stated

‘I must analyse whether the four conditions have been met for the defense of proprietary estoppel to apply. The four conditions are:

1. An expenditure;
2. A mistaken belief
3. Conscious silence on the part of the owner of the land; and
4. No bar to the equity.
   

16. The only averment regarding the alleged improvements contained in the affidavit in opposition is a statement alleging that he has built house and fence and planted crops and trees, but when he came to the land and any details of the improvements has not been given.
    
17. Over a century earlier in 1880 Lord Blackburn in Wallingford v. Mutual Society 1880] 5 AC 685 said of the nature of the affidavit required from a defendant in opposing an Order 14 application at p. 704:
    

"I think that when the affidavits are brought forward to raise (a) defence they must; if I may use the expression, condescend upon particulars. It is not enough to swear "I say I owe the man nothing". Doubtless, if it was true, that you owed the man nothing as you swear, that would be a good defence. But that is not enough. You must satisfy the judge that there is reasonable ground for saying so ... And in like manner as to illegality, and every other defence that might be mentioned."

18. The above judgment though not decided on the requirements in an affidavit in opposition in an action in terms of Section 169 of Land Transfer Act, the same principle can be applied as this is a summary procedure in obtaining possession of land and a mere statement that he has an equitable claim is not enough, and more detals as to how he came to the land and how long he was there and specially the fulfillment of the requirements stated above in establishing a proprietary estoppel is needed. In this case the Defendant has failed to do so.
    
19. So, the Defendant has failed to establish a proprietary estoppel and no right to remain in possession proved.
    
20. In the circumstances since the Plaintiff has proved its title to the property and the Defendant has failed to prove its rights to stay in the property.
    

4. CONCLUSION
   

21. The Defendant has not established any equitable right to stay in the property. The Plaintiff is the proprietor of the property and his right to possession should be recognized in law for the reasons given above and the Defendant is ordered to give vacant possession to the Plaintiff. I will not order a cost considering the circumstances of the case.
    

The Court Orders as follows:

1. The Defendant is ordered to give possession to the Plaintff the Lot 7, Waikalou the land comprised as described in Certificate Title No 30897, Lot 7, Waikalou on Deposited Plan No 7951 (Deuba Part of) and contain the area of 4555sq m with immediate effect.
   
2. No cost.
   

Dated at Suva this 30th Day of September, 2011.

...................................
Mr. D. Amaratunga
Master of the High Court
Suva