Chinamma v Sami [2012] FJHC 1077; HBC301.2011 (11 May 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Action No: 301 of 2011

IN THE MATTER of the application under Section 169 of the Land transfer Act Cap 131 and Order 113 of the High Court Rules.

BETWEEN:

CHINAMMA of Calia, Baulevu Road, Nausori, Domestic Duties, NAND RAJAN of Auckland, New Zealand, Technician, SHIU SAMI
of Brisbane, Australia, Painter and SAGA DEWAN of Calia, Baulevu Road, Nausori, Plumber.
PLAINTIFFS

AND:

NARAYAN SAMI, VISHAL LAXMI, IMITIAZ ALI and VISHWA NADAN all of Ucalia, Baulevu Road, Nausori, occupation unknown.
DEFENDANTS

BEFORE : Master Deepthi Amaratunga

COUNSEL : Mr. M. Nand for the Plaintiff

Mr. S. Kumar for the Defendants

Date of Hearing : 09th March, 2012

Date of Ruling : 11th May, 2012

DECISION

1. INTRODUCTION
   

1. The Plaintiff filed this action against the Defendants for eviction. The Plaintiff is the last registered proprietor of the property and the 1st named Defendant is alleging that he was promised of a portion of the land when he started a defacto relationship with the 1st named Plaintiff’s late daughter named Savithri Devi.
   
2. The Defendant has lived in the premises for over 12 years and the Plaintiff denies any authority to stay in the property permanently.
   

2. FACTS
   

3. The Plaintiff is the last registered proprietor of the property described in the summons and the Defendant admits that position.
   
4. Admittedly, the 1st named Defendant had a defacto relationship with the late Savithri Devi daughter of the 1st named Plaintiff, and after the demise of the said daughter and the defacto partner, the 1st named Defendant has remained in the said property and at the oral hearing it was revealed that he had married again and living in the said property.
   
5. The 1st named Defendant has failed to explain the position of Vishal Laxmi, Imitiaz Ali and Vishwa Nandan, who were also named as Defendants in this application. It is clear that they are living in the said premises together with the 1st named Defendant.
   

100. ANALYSIS.
     

6. The 1st named Defendant admit that the land described in the summons belongs to the Plaintiffs and the certificate of title filed by the Plaintiff clearly indicate that fact.
   
7. Once the proprietorship is proved the burden is shifted to the defendants to establish a right to remain in the property. In the case of Prasad v Mohammed [2005] FJHC 124; HBC0272J.1999L (3 June 2005) Justice Gates (as his Lordship then was) stated that under the Torrens system of Land Law the registration is conclusive, subject to the exception of the fraud, and at paragraphs 13 and 14 of said judgment stated as follows:-
   

“[13] In Fiji under the Torrens system of land registration, the register is everything: Subaramani & Ano v Dharam Sheela & 3 Others [1982] 28 Fiji LR 82. Except in the case of fraud the title to land is that as registered with the Registrar of Titles under the Land Transfer Act [see sections 39, 40, 41, and 42]: Fels v Knowles [1906] NZGazLawRp 66; (1906) 26 NZLR 604; Assets Co Ltd v Mere Roihi [1905] UKLawRpAC 11; [1905] AC 176, PC. In Frazer v Walker [1967] AC 569 at p.580 Lord Wilberforce delivering the judgment of the Board said:

"It is to be noticed that each of these sections excepts the case of fraud, section 62 employing the words "except in case of fraud." And section 63 using the words "as against the person registered as proprietor of that land through fraud." The uncertain ambit of these expressions has been limited by judicial decision to actual fraud by the registered proprietor or his agent: Assets Co Ltd v Mere Roihi.

It is these sections which, together with those next referred to, confer upon the registered proprietor what has come to be called "indefeasibility of title." The expression, not used in the Act itself, is a convenient description of the immunity from attack by adverse claim to the land or interest in respect of which he is registered, which a registered proprietor enjoys. This conception is central in the system of registration."

[14] Actual fraud or moral turpitude must therefore be shown on the part of the plaintiff as registered proprietor or of his agents Wicks v. Bennett [1921] HCA 57; [1921] 30 CLR 80; Butler v Fairclough [1917] HCA 9; [1917] 23 CLR 78 at p.97."

8. There is no allegation of a fraud in this case, but the 1st named Defendant is alleging that he was promised of one acre of land as dowry by the 1st named Plaintiff. He also stated this promise was a written undertaking and it got destroyed in a hurricane followed by a severe flooding.
   
9. If that happened, why he could not obtain another written undertaking is not explained. It was very clear the relationship between the parties turned sour only after the demise of the daughter of the 1st Plaintiff and the subsequent actions of the 1st named Defendant. So, in the proper analysis of evidence applying the accepted principles of in the evaluation of the evidence the said fact of an existence of written promise to give part of land as dowry cannot be accepted and the probability of such an event is not a thing that can be accepted. If a vital document is destroyed due to natural cause any reasonable person would make necessary actions to obtain it again. Since the 1st named Defendant was having a cordial relationship with the mother of the de facto partner (1st named Plaintiff) at that time he would have easily obtained another letter (if such letter existed). So, I do not believe the said statement of the 1st named Defendant that there existed a written promise of Plaintiff to grant a one acre of land or any part of the land described in the summons.
   
10. In the paragraph 15 of the affidavit in opposition the 1st named Defendant state that his application for the connection to the electricity line and water supply was initially rejected, but failed to mention the date of the said application. If this happened before the hurricane 'Kina' it is clear that what there was never a written promise and if this happened after the alleged destruction he could have easily requested for a fresh undertaking from the 1st Plaintiff and it is clear that the alleged 'written promise' being destroyed is nothing but a fiction created for this action and no weight can be attached to such allegation.
    
11. The defendant state that he was able to obtain connectivity to electricity grid and was also able to connect to the water supply, but allowing these essential amenities would not necessarily indicate anything more than a licence and this permission can be terminated with notice. Water and electricity are necessary amenities of life and the circumstances under which the consent for that was granted, is explained by Plaintiff.
    
12. The counsel for the Defendant submitted to me the Fiji Court of Appeal Civil appeal No ABU 0021-22 of 2002s Ram Chand and others Vs Ran Chandar/ Hari Prasad where the Court of Appeal upheld the decision of the High Court to dismiss the application for eviction, but on completely different basis and stated as follows
    

'In the light of the opportunity given to the appellants to amend the order for possession which they seek, the only alternative, we have is to conclude that the proceedings were rightly dismissed by Byrne J. although not for the reasons he gave. Our reasons are based upon the failure of the appellants to formulate appropriate orders to which the Court can give effect. Accordingly, these appeals are dismissed but without prejudice to the appellants right to bring properly constituted proceedings in subsequent actions.'

So, it is clear that the said action was dismissed not on the merits of the case but on a technical ground of the orders sought by the appellants in that case being unenforceable and vague.

13. In any event the facts of the said case again indicate improvements to the property on alleged unwritten promise to compensate or to transfer of the said developed area, but the court unreservedly held that when there is no written agreement, despite the improvements, it cannot be held as a right to remain in property. In the said case Court of Appeal held '....Furthermore there would be a question, if there were evidence of an option to purchase, as to whether the agreement needed to be in writing and whether or not the agreement, if any, was capable of being enforced. I may be that the expression 'nominal price' is too uncertain to be capable of enforcement.'
    
14. The Plaintiff has lived with the late Savithri Devi in the said premises in de facto relationship. So, it is clear that none of them wanted to regularize their relationship till the demise of one partner. It is highly unlikely that in such circumstances to grant a 'dowry' to a de facto partner who does not want to marry and desired to keep the relationship very informal manner. Dowry is presented when the marriage is formalized, and when there is certainty of having a formalized relationship. In this instance there was no such formalization and it is highly unlikely that in such a situation a parent would give a dowry, specially the same property that the mother of late Savithri Devi was living. The 1st named Plaintiff, who was the mother of the late Savithri Devi has categorically denied any promise to the 1st named Defendant, save any written promise of dowry.
    
15. The 1st Plaintiff only state that she allowed the late daughter and the 1st named Defendant to live in the said property temporary. This can be accepted as their relationship itself was never formalized and made permanent. The promise of dowry is nothing but a unsubstantiated allegation that cannot be attached any weight in the analysis of the evidence in totality.
    
16. Though the counsel for the Defendants did not rely on the contention of proprietary estoppel I think that issue has to be resolved considering the facts of the case.
    
17. Proprietary estoppel
    

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.

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 cogent evidence"

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

18. 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 Frasiko by Justice Anjala Wati 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
   

19. Snell's Equity (29th Ed 3rd impression 1994) on Proprietary Estoppel states as follows (p 573)
    

'Proprietary estoppel 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. Proprietary estoppel is older than promissory estoppel. It is permanent in its effect, and it is also capable of operation positively so as to confer a right of action. The term "estoppel", though often used, is thus not altogether appropriate. Yet the equity is based on estoppel in that one is encouraged to act to his detriment by the representation or encouragement of another so that it would be unconscionable for another to insist on his strict legal rights.'

20. It is clear that the Defendant and the late Savithri had built a house on the premises and this was done without any Building Permit or Occupancy Certificate from the relevant authority. This indicates the temporary nature of the investment and the minds of the parties when they built it. It also indicates the temporary nature of the said structure. If it is a permanent one, there will also be a need to obtain proper approval before building. I have not been presented with such approval and also there was no valuation of the said structure. This could have easily done by the Defendants, and without such a valuation I am not inclined to accept the value stated by the Defendant. If the structure is valuable, why the Defendants failed to obtain a valuation needs to be explained and in the absence of that it can be assumed that a valuation was not obtained because if done it would prove facts against them, when the correct valuation is revealed.
    
21. Though the 1st named Defendant alleged that he was promised of one acre of land, this was not proved and there was clearly no mistaken belief as to the ownership of the property, and clearly no proprietary estoppel can be established as it is an essential ingredient.
    
22. If the 1st Defendant is allowed to remain in the property it would also be against the equity as all indications are that the possession of the property was as temporary as their de facto relationship with the late Savithri and the permission or license granted to possession was at the mercy of the Plaintiffs. The 1st named Defendant has also let other parties to possess the land without the consent of the Plaintiffs and if allowed this would be clearly against the equity.
    

4. CONCLUSION
   

23. The 1st named Defendant who had a de facto relationship with the daughter of the 1st named Plaintiff lived in the house that he resides at the moment with some outside parties. The 1st named Defendant allege that he was promised of a dowry, but in my analysis of evidence I have rejected the said contention. I have also held, that the alleged written promise and destruction of written promise from a hurricane and flooding that followed, is as nothing but a fiction. In the circumstances the Plaintiffs have proved that they are the last registered proprietors of the property and the 1st named Defendant was only a licensee, whose occupancy relied on the de facto relationship with the late daughter of 1st Plaintiff. It cannot be extended to permanent license to remain in the property with outsiders without the consent of the owners. The 1st named Defendant has failed to establish proprietary estoppel as he knew the property did not belong to him when he and late Savithri built the house on the property and if the 1st Defendant is allowed to live in the said property along with outsiders it will not only against the equity but will also result injustice to the Plaintiffs. Though the 1st Defendant lived in the said house for a considerable time neither he nor late Savithri took any measure to obtain separate title and or subdivision of the said part of the property from the property described in the summons. This will indicate the possession of the 1st named Defendant was nothing but a temporary possession and this would not create a proprietary estoppel and in the absence of fraud the registration is everything and the Plaintiff should be entitled to eviction of the Defendants from the premises. Considering the facts of the case I will stay the execution for two months from today (i.e. till 10th July 2012)
    

5. FINAL ORDERS
   

1. The Plaintiffs are granted possession of the property described in the summons.
2. The Defendants are ordered to give vacant possession to the Plaintiffs.

100. The execution of order for eviction is stayed till 10th July 2012.

4. No cost.
   

Dated at Suva this 11th day of May, 2012.

.................................................
Master Deepthi Amaratunga
High Court, Suva