Blue Latitude Ltd v Sharma [2012] FJHC 848; HBC150.2011 (31 January 2012)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 150 of 2011

IN THE MATTER of part XXIV of the Land Transfer Act Cap 131.

BETWEEN:

BLUE LATITUDE LIMITED and NICOBAR LIMITED both limited liability companies having its registered office at C/- R. PATEL LAWYERS, Level 5, Development Bank Centre, 360 Victoria Parade, Suva in Fiji.
PLAINTIFFS

AND:

JITENDRA DEO SHARMA f/n Ram Pati Maharaj of Navua in Fiji.
DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSEL: Mr. D. Sharma for the Plaintiff
Ms. Swasthika Narayan for the Defendant

Date of Hearing: 8th December, 2011 and 6th September, 2011
Date of Ruling: 31st January, 2012

DECISION

1. INTRODUCTION
   

1. The Plaintiff is a company involved in property development which has obtained the title to the land comprising nearly 291 acres in Navua where the Defendant is in possession from his birth and his predecessor (his father) has also lived and developed and or cultivated an area which cannot be defined exactly, but the Defendant state that he area where he developed can be easily identifiable as the rest is swampy. The Defendant has built two permanent structures and had been living in the premises for over 50 years. From the evidence before me on this application for eviction, the Defendant's claim is either for promissory estoppel or for proprietary estoppel, he has not specified any, but state that he has done substantial improvements and on equitable grounds this application needs to be dismissed. What the Defendant has to establish is an arguable case based on either of the above principles and upon the proof that this summons for eviction in terms of Section 169 needs to be dismissed. The Defendant has fulfilled its burden by adducing evidence supporting an arguable case for such a right based on equity. The Plaintiff argued that since there is no evidence of approval from the rural authority for the two permanent houses that were built by the Defendant that violates the law, hence no equitable remedy can be granted, but this is not a proceeding instituted by rural authority for eviction based on illegality and over the past 70 years there is no communication of illegality and even in this application there is no allegation of illegality in the affidavits and or its supporting documents. The Defendant has not only constructed two permanent structures, but also developed the land and also cultivated a part of it and I do not have any evidence to show that these developments requiring any approval from rural authority and if he is evicted he will be deprived of all the development which cannot be called illegal. So, the argument that was put forward by the Plaintiff regarding the illegality (without any form of evidence) can maximum confined to the structures and not to occupation of the land for cultivation and other forms of development carried out by the Defendant and there is no bar to the equity in dismissing this application. I have also held that illegality in this case is also not a bar to equity in the analysis of the case authorities on this issue as found in Snell's Equity (29th Edition 3rd impression 1994).
   

2. FACTS
   

2. The property described in the summons comprising 291 acres, was transferred to the Plaintiff on 8th February, 2011.
   
3. The Plaintiff is a company that is engaged in the property development and it did not waste time in notifying the Defendant to hand over the vacant possession by a letter written of 4th March, 2011 written by its lawyers.
   
4. The Plaintiff's title to the land is not denied by the Defendants and the Defendant's long possession of the land is also evidenced form the correspondence that he and his father had with the predecessor in title to the land who transferred the title to the Plaintiff in 2011.
   
5. The Plaintiff obtained the title to the land while the Defendant was living on the land and there was ample evidence to show the long and substantial improvements by the Defendant.
   
6. The Defendant state that he has cultivated and developed an area of 20 acres out of 291 acres and has also marked that with stone, the Defendant has not paid any rent and his father has 'bequeathed' the premises in his will to the Defendant indicating the state of mind of his late father at the time of his death and Defendant has also considered the area where he was in possession as his as he has never sought any approval from the predecessor and or paid no rent for the occupation as well as cultivation and for the development of it including electricity connection to the grid with the erection of pillars for that at his expense and also connection to water supply.
   
7. The Defendant also alleges that he had filled the land area since it is marshy or swampy and also state that he constructed drainage and a gravel road.
   

100. LAW AND ANALYSIS
     

8. Section 172 of the Land Transfer Act states 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;"

9. In Morris Hedstrom Limited –v- Liaquat Ali CA No: 153/87, the Supreme Court of Fiji described the scope of the said provision contained in section 172. The Defendant is claiming equitable relief for the improvements done by him and his predecessor for over 70 years.
   
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. What the Defendant has to satisfy is not a final proof of a right to remain in possession but some tangible evidence supporting an arguable case for a right to remain in possession. Defendant claims equitable relief based on the improvements that he has done over 55 years. Defendant has lived in the house he has constructed for over 55 years and has also built another house adjoining to this house and has also obtained electricity connection from the grid of supply and also obtained connection to water supply in the area from the Water Authority of Fiji.
    
12. The Plaintiff has submitted a supplementary affidavit annexing photographic evidence of the two houses and the a letter of 'Wright Realty' stating that the structural replacement of the houses will not be more than $15,000 to $20,000 but this evidence cannot be relied upon on the analysis of the evidence.
    
13. The said letter also contains a disclaimer and states as follows
    

'This report has been prepared for the private and confidential use of our client. It should not be reproduced in whole or part without the express written authority of WRIGHT REALTY or relied upon by any other party for any purpose.'

14. There is no written authority from the authors of the said letter filled in this action and hence this evidence supplied through a supplementary affidavit cannot be accepted in these proceedings as evidence and should be considered confidential communication as stated in the said letter.
    
15. The said letter of WRIGHT REALTY is dated 9th September, 2011 that is two days after the first hearing of this action, indicating that the Plaintiff as well as WRIGHT REALTY would have had the knowledge of this action and if the purpose of the letter was to submit to court then that kind of exclusion would not have been included in the letter. So, it is clear that though the letter was written to the Plaintiff, at the same time it disowned the content of it by including such statement and, if it is a professional assessment by a competent person no such exclusion is needed to be included.
    
16. The Defendant in his affidavit in opposition at paragraph 13 stated that he has carried out improvements to the value of approximately $50,000 and also stated the said, in the said paragraph as follows
    

'13. That I have carried out the following works on the said land valued at approximately $50,000

1. I have constructed a dwelling house which is itself worth about $30,000.
   
2. Constructed proper drainage on the said land
   
3. Constructed power poles for FEA to run electricity lines from main road to the land
   
4. Constructed a gravel road
   
5. Run water pipes from land to main water pipe on the main road and
   
6. Leveled and developed the land to convert it into a farm.'(emphasis is added)
   

17. In reply to this paragraph at paragraph 14 of the affidavit in reply filled on 21st June, 2011 the Plaintiff stated as follows
    

'14. That as to paragraph 13 of the Affidavit, I have no personal knowledge of the matters deposed to by the Defendant as no other evidenced is annexed to corroborate such expenditure but as successor to Ram Pati the Defendant would have known that he was only a tenant on the property and one day he could be asked to vacate the land.'

18. In the analysis of the evidence before me the Defendant has detailed the improvements he has done to the property and has indicated six types of improvements that he has carried out at his own expense which would have increased the value of the land and has developed it, but the Plaintiff states that it was unaware of the said improvements, without denying them. This may be a convenient method of avoiding the important issue of improvements to the land, but certainly it will not help the Plaintiff as such vague and indecisive answers will only reinforce the alleged improvements on the land in the analysis of the evidence by a court of law.
    
19. Improvements such as Electricity Connection to Defendant and the poles for the transmission of electricity and also construction of gravel road are easily visible on the land and could have either admitted or denied, because the previous owners have not done any improvements to the premises for well over a half a century and there is no evidence of they even visiting the property as they were in Australia. The Defendant also state that he has obtained connection to water supply, these would have been at least discovered in the purported 'valuation' that was supplied through a supplementary affidavit and the Plaintiff had ample opportunity to reply to the said allegations and cannot reasonably unaware of them as sworn in the affidavit in reply. This indicates that the Defendant has not only constructed two houses but also done substantial improvements to the land as stated in the affidavit in opposition and the Plaintiff is adopting a path of least resistance to avoid admission of the evident facts on the land.
    
20. The purported 'valuation' that was submitted only deals with the house and it cannot be accepted as independent valuation as it has not even indicated that the house has obtained electricity connection from FEA as evidenced from the photographs. It is also silent on the issue of connection to water supply from the Water Authority. The said letter that was submitted though a supplementary affidavit has not valued the structures (houses) but state 'structural replacement cost' which is not the proper valuation of the structure. But the said letter state that cost of new materials and labour cost, again falling short of any valuation of the permanent structures and completely ignored the other improvements to the land in issue including electrification and the cost involved in it and this shows in the analysis of the evidence that this letter of Wright Realty cannot be relied upon and falls short of being an independent valuation of any improvement on the land. In any event that is only a confidential letter and cannot be considered as a valuation as I have indicated prior in this ruling as it was stated in the said letter.
    
21. The Defendant provided some invoices to verify his claim for improvements and claim on equity. He did not provide independent valuation. He only provided receipts or invoices to verify his claim for improvement, but I am unable to ascertain the truth of them as to whether those receipts are connected to the said improvements, without leading any oral evidence and this is clearly not ascertainable in summary manner. Both sides have failed to produce any independent valuation that is acceptable in a court of law to ascertain the value of improvements on theland, but on the analysis of evidence before me I can safely deduce that substantial improvements were carried out by the Defendant over the time period that spanned over half a century without any form of involvement of the certificate holders of the land during that time period.
    
22. The Defendant did not provide any Building Permit or Occupancy Certificate from the Navua Local Rural Authority to show that the dwelling house that he had constructed was a legal structure. The Plaintiff state that an illegal structure without proper building permits is worth nothing, but that may not be an issue as there were no proceedings by the Rural Authority for over 70 years!
    
23. Why did the local authority and or the previous owner as well as the Plaintiff were silent on the issue till the hearing of this summons for eviction needs an explanation. This may be due to the improvements and work that was done to improve as well as to protect the property form other squatters for over 70 years and now this illegality is being raised for the first time in the hearing without any supporting evidence to deprive the equitable relief that was sought by the Defendant.
    
24. The Defendant has not only lived on the said premises for over half a century but also has obtained electricity from FEA and there is no evidence before me to come to conclusion that the Defendants occupation in the land is illegal. If so why did the predecessor of the title let the Defendant to live in the said premises for over 70 years till it was transferred to the Plaintiff, and even after the transfer to the Plaintiff it did not raised the issue of illegality of the structures till the hearing of this summons. So, the contention of the Plaintiff that the occupation is illegal is only aimed at depriving the Defendant of the equitable relief, which cannot be decided in this proceeding as the establishment of proprietary estoppel can be determined only after oral hearing considering the nature of the evidence and the nature of the claim of the Defendant. This is not a proceeding filled by the rural authority for eviction and or any eviction based on illegality as it has not transpired from any of the communications that put forward by the parties. This eviction proceeding is instituted by the last registered owner who obtained transfer to the land in 2011 and the improvements to the land is not only the construction of the house, but the Defendant has also cultivated and developed the land, for which there is no allegation of any illegality. In the circumstances it is clear that dismissal of this application will not be against the equity and it will not violate any statutory provision of law.
    
25. The Defendant state he has an equitable right to remain in the land because of the improvements, but what I have to decide in this application is whether he has an arguable case for such a right as stated in Morris Hedstrom Limited –v- Liaquat Ali. So, the Defendant need not establish an equitable remedy in this proceedings, but if he is able to establish an arguable case for such an equitable relief that would be sufficient for dismissal of this summons.
    
26. In Murgessa v Shell Civil Action No. HBC0065 of 1997 Justice Pathik said:

"The determination of the issue in this case is a matter for the discretion of the Court. There is no denying the fact that the Court has a discretion to permit any party to introduce 'further evidence' at any stage of the proceedings. It has been said that this power in the Court is necessary to cope with surprise and matters occurring after the commencement of the hearing or even to allow for slips, accidents or oversights."

27. Both parties have adduced additional evidence after the first hearing of this matter and they were given another opportunity to address to the new materials submitted through supplementary affidavit.
    
28. The Defendant has not specified the equitable remedy that he is seeking, but upon the perusal of the affidavits and other evidence the claim can be based on promissory estoppel or proprietary estoppel.
    

PROMISSORY ESTOPPEL

29. Promissory estoppel according to Snell's Equity (29th Edi-3rd impression 1994) at page 570 state as follows
    

'During the nineteenth century equity extended the doctrine of estoppel to cases where instead of a representation of an existing fact there was a representation of intention or promise. More recently, this extension became prominent in a sequence of cases following the obiter statement by Denning J in Central London Property Trust Ltd v High Tree House Ltd., though these cases "may need to be reviewed and reduced to a coherent body of doctrine by the courts."

The doctrine

(a) The rule, Where by his words or conduct one party to a transaction freely makes to the other an unambiguous promise or assurance which is intended to affect the legal relations between them (whether contractual or otherwise) a, and before it is withdrawn, the other party acts upon it, altering this position to his detriment, the party making the promise or assurance will not be permitted to act inconsistently with it. It is essential that the representor knows that the other party will act on his statement. Yet the conduct of the party need not derive its origin only from the encouragement of preparentation of the first; the question is whether it was influenced by such encouragement or representation." (emphasis is added)

30. In this case clearly the conduct of the predecessor in title for over 70 years to allow the Defendant to remain in possession without any rent being paid and also to allow him as well as his predecessor to cultivate the whole of 291 acres and has also consented to sublet it has encouraged the Defendant to two houses on the land and also to obtain electricity connection and erection of build pillars for wires for the transmission of electricity and also connection to the water supply with proper drainage and also filling of the land and also construction of gravel roads along with other improvements for over 70 years can be considered as a conduct that would result in the establishment of promissory estoppel, but this needs to be tested in a proper hearing where oral evidence is led in an action based on writ of summons. In this proceedings what the Defendant needs to adduce is an arguable case for such a right and on the analysis of the evidence before me he has done so.
    

PROPRIETARY ESTOPPEL

31. In Denny v Jessen [1977] 1 NZLR 635 at 639 Justice White summarized the proprietary estoppel as follows:
    

"In Snell's Principles of Equity (27th ed) 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).

32. 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.
    
33. 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".

34. 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
   

35. Snell's Equity (29th Edi 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.'

AN EXPENDITURE

36. As I have analysed in this ruling prior the Defendant has incurred substantial improvements though there is no evidence acceptable to arrive at an exact figure and assessment of the extent of the improvements. Nevertheless, there is ample evidence to suggest substantial improvements to the property. The value of the improvements cannot be ascertained in summary manner as it invariably needs some valuation acceptable to court which addresses all the improvements that can be ascertainable by an independent body that has professional skills and competency to carry out such valuation. In the assessment of two houses that were built it is essential to consider that they are supplied by the electricity from the grid belonging to the Fiji Electricity Authority and also connected to water supply provided by the Fiji Water Authority. On the materials before me there is cogent evidence of improvements by the Defendant to the land not only confined to construction of the houses, but also other improvements like cultivation, drainage, gravel road, pillars for supporting electricity wires and also obtaining connection for water supply from the Water Authority etc.
    

A MISTAKEN BELIEF

37. The Defendant's father has included this property even in his last will and the Defendant never sought any authority and or permission not only to live and construct two houses but also obtained electricity connection from the FEA and also obtained connection to water supply belonging to Water Authority of Fiji and also did substantial improvements to the land. The only permission that it sought was to evict some other squatters in an area where he was not in possession as the land area is vast comprising of 291 acres and the area where he alleges to have developed and cultivated confined to a mere fraction of it (20 acres). So, clearly that permission sought to evict other squatters from the area he was not in possession cannot be considered as acceptance of ownership to the area where he lived and possessed and improved. The said letter also indicates that the Defendant's possession was not a mere possession but he was also protecting the property from the squatters and he has informed the owners of any illegal squatters and in fact was willing to evict them if the permission was granted. This letter indicate that some genuine effort to protect the land from others was also taken though he was not in possession of the area where the squatters tried to occupy. Since the Defendant is not claiming the entirety of the land comprising 291 acres and also has admitted the Plaintiff's title there is no inconsistency as to the mistaken belief as to the area he was in possession and the Defendant is only seeking equitable relief.
    

CONSCIOUS SILENCE ON THE PART OF THE OWNER OF THE LAND

38. The owners of the land remained silent till the Defendant did all the improvements to the land for over half a century. There is no evidence of any improvement or preservation of their right over the entire land or part of it by the owners. The Defendant has not only obtained electricity connection with the erection of pillars on the land but has also obtained connection to the water supply from the Water Authority of Fiji and no action was taken to prevent and or to stop such utilities being supplied to the land by the owners for over the years. Construction of gravel roads and proper drainage systems was also alleged to have been done without any objection and or seeking any such permission and this clearly indicate conscious silence on the part of the owners for well over 70 years, where they have let the Defendant as well as his predecessors to carryout improvements on the land.
    

NO BAR TO EQUITY

39. In Snell's Equity at page 576 (29th Edition 3rd Impression 1994) under 'No bar to equity states as follows
    

'No equity will arise if to enforce the right claimed would contravene some statute, or prevent the exercise of a statutory discretion or prevent or excuse the performance of a statutory duty.'

40. The foot note relating to the above statement in the text is clear and without reading it one cannot understand and apply the said principle and it states as follows
    

'Chalmers v Pardoe [1963] 1WLR 677, distinguished in Maharaj v Chand [1986] 1 WLR 808; contrast Ward v Kirkland [1967] Ch 194 at 241, 242 as to which, quaere And see ante, p 573'

41. The above statements are based on case law and one cannot blindly apply these statements in a text book, without analyzing the base of such statements in the texts and without understanding principles based on them. If such application is done it will be clearly a misdirection of law and will do great injustice to parties as well as to the development of the principles of the law as often cited in submissions.The cases which the author of the text on Equity relied upon are stated in the footnote of the Snell's Equity at page 576 and I will now deal with them here.
    
42. Western Fish Products Ltd v Penwith District Council and another [1981] 2 All E.R. 204 is a case where the Defendant is a city council and the Plaintiff is suing it on a claim based on proprietary estoppel as he has carried out some construction upon the assurance of the approval from the Council and the issue was when the approval is refused whether the planning authority can be estopped from exercising statutory discretion, where it held that an estoppel could not be raised to prevent a statutory body exercising its statutory discretion or performing its statutory duty.
    
43. In contrast to this the Plaintiff in the case before me is not a statutory body and they are not seeking eviction on illegality, as there is no mention of that in any of the correspondence. This is an application made in pursuant to Section 169 by the last registered proprietor and any dismissal of the present action will not result any statutory duty or discretion being violated by the order of the court. It should also be noted that the alleged illegality is also confined to the construction of the house and there are many other forms of improvements that the Defendant has done including cultivation which clearly does not require any authorization hence shows no illegality. So, any application of proprietary estoppel in this ruling will not violate any statutory discretion or any statutory body from performing its duties. The Rural Authority is not a party to this action and they have not even written a letter to the Defendant, save any demolition on illegality and the issue raised on illegality cannot deprive the application of equity based on the ratio of the said case.
    
44. Nathaniel Stuart Chalmers Vs Lawrence Pardoe [1963] 1 WLR 677. This is a decision of Privy Council delivered by Sir Terence Donovan upon a decision of the Supreme Court of Fiji, regarding a native lease. The grant of the claim by the plaintiff clearly not only violated the native lease, but also the Native Land Trust Ordincance (chap 104) as the plaintiff's action was considered as a 'dealing' in terms of Section 12 which needed the mandatory consent of the Director of Land, which the Plaintiff has not obtained and clearly the mandatory requirement of consent enshrined in Section 12 of the said ordinance was held paramount over the equitable relief.
    
45. This again clearly distinguishable from the current application for eviction. The dismissal of action would not result any law being violated as the eviction is sought not only from the house but also from the entire land. There is no evidence that the eviction is based on illegality, this is clear from notice of the eviction of the Plaintiff. If the occupation is illegal why no authority took notice of that for over 70 years needs explanation and this cannot be done in this action. Clearly the case before me is distinguishable from the above case. There the mere possession was violation of a law as it required consent of the Director of Land, but here there is no such requirement of possession being violating any law as the cultivation and other forms of improvements do not need any authoirzation. At maximum the construction of the house may be in contravention of a law, but whether that would amount to demolition and eviction cannot be decided in this application. Some constructions may obtain covering approval or some alterations to the existing building would be recommended and merely because one has failed to obtain approval a dwelling will not be demolished at least without notifying to the parties. This is more so when considering the 70 year long period of existence of structures without any approval. I cannot decide in this action through affidavit evidencewhether the structures are illegal and if illegal that needs to be demolished resulting eviction of the Defendant from the house and this should be left to a separate hearing where the issue is raised properly and parties are heard fully with supporting evidence to the issue.
    
46. Ward v Kirkland [1967] 1 Ch 194. This is a case where it held that permission given in contravention of a law is valid for the establishment of the proprietary estoppel.
    
47. Sheila Maharaj V Jai Chand [1986] A.C 898.This is again a Privy Council decision on appeal from the decision of the Court of Appeal of Fiji which overturned the decision of Supreme Court of Fiji and the issue is again similar to Nathaniel Stuart Chalmers Vs Lawrence Pardoe [1963] 1 WLR 677 where the grant of proprietory estoppel would violate the Section 12 of the Native Land Trust Ordinance where the consent of the Director is a sine qua non for any 'dealing'. In this judgment in Privy Council against an appeal from the Fiji Court of Appeal did not follow the earlier decision of Nathaniel Stuart Chalmers Vs Lawrence Pardoe [1963] 1 WLR 677 .
    
48. In the case of Sheila Maharaj V Jai Chand [1986] A.C 898 the parties were married at the time the property was acquired by one spouse but the property was grnated under a special scheme for married couples. After some time the party in whose name the property was acquired left the matrimonial residence, but by consent let the other party to live on the premises for some time, but later claimed it, and in defence the proprietary estoppel was pleaded. It was held finally on appeal to the Privy Council from the decision of Fiji Court of Appeal decision, that the agreement between the parties did not violate Section 12 of the Native Land Trust Ordinance as it was held that the agreement between the estranged husband and wife can create a proprietory estoppel and the claim for regain of the premises was dismissed on the basis of proprietory estoppel.
    
49. So, blindly applying the statement in Text in Snell's Equity at page 576 is not warranted in a matter where the summons for eviction in terms of Section 169 of the Land Transfer Act. The above cases where the courts did not grant proprietary estoppel is, where it held that such right in equity would violate the mandatory requirement contained in the Section 12 of the Native Land Trust Act that declares any dealing without the consent of the Director of the Land as null and void. So, even without an order of the court any 'dealing' effected without the consent becomes void ab initio and this can be easily distinguishable from voidable and more so a case similar to the facts before me in this case, where there is no nullity till the court decide on the issue and the effective date will be the time of finding of the court as against the provision contained in Section 12 which gives a finding a retrospective effect from the time of the 'dealing'.
    
50. Considering the ratios of the decisions that are indicated in the courts were reluctant to establish proprietary estoppel where it was held that the transaction between the parties were a 'dealing' in terms of Section 12 of the Native Land Trust Act. This can be understandable as if proprietory estoppel is allowed it can be utilized as a method to circumvent the mandatory provision of the law to transfer the title without the consent of the Director of Land. This clearly contravenes the principle what one cannot do directly cannot be done indirectly. So, the ratio in those cases were in fact needed to stop the abuse of the process to circumvent the mandatory provision fo the statutory provision in dealing with the land subject to the said act, which the said provision is incorporated with a good reason to prevent the parties who obtain such leases, from any further dealings of such land which can be understandable. If the courts accepted the proprietory estoppel in relation to such land where the dealings were done in contravention of Seciton 12 of the said law, that would open food gates for the parties to deal freely with the land without the consent of the Diretor of Lands in the guise of proprietary estopple, but this principle cannot be in any event be equated to the issue before me as the possessin of over 70 years without any notice of illegality and considering the alleged illegality is only confined to the construction of house and not the possession of the premises as in the cases discussed above. In this case for the reasons given above as that statement was based on the said decisions and all of them are clearly distinguishable from the facts before me. So, the alleged unsubstantiated illegality, raised first time at the hearing is not a bar to the equity and the statement in the Snell's Equity was based on the above decisions which I have distinguished from the facts of this case cannot be applied to the present circumstances due to the nature of the action before me and the nature of the burden of proof needed for dismissal in the summons for eviction, where the Defendant is only required to adduce some evidence establishing an arguable case.
    
51. There is no bar to the equity if this application is dismissed. Even if the two houses are built illegally there is no illegality as to the cultivation on the land and also doing other improvements as alleged by the Defendant. This proceedings are instituted by the Plaintiff Company to evict the Defendant as the last registered owner. So there is no bar to the equity if this application is dismissed. If this is allowed the improvements that the Defendant has carried out over half a century, will not be considered and this is a great tragedy if one were to allow eviction, stating a passage in the Snell's Equity without properly understanding the basis and the principle of it and rejecting the evidence before me for an arguable case for proprietary estoppel on the alleged illegality that at maximum would confine to the construction of the house and no more.
    

4. CONCLUSION
   

52. The Defendant has adduced tangible evidence establishing a right or supporting an arguable case for such a right based on equity. This is sufficient to dismiss this action for eviction. The Defendant has carried out substantial improvements to the land including the two houses. His improvements did not confine to two houses. In this application he needs not establish proprietary estoppel but there is evidence supporting an arguable case based on that principle as I have analysed in my decision. I have clearly distinguished the cases based on the statement in the Snell's Equity, that stated if there is a violation statutory provision that it has to be considered as a bar to the equity. The summons for eviction is dismissed and the Plaintiff is ordered to pay a cost of $750 assessed summarily.
    

5. FINAL ORDERS
   

1. The summons for eviction in terms of Section 169 of the Land Transfer Act is dismissed.
   
2. The Defendant is granted a cost of $750 assessed summarily.
   

Dated at Suva this 31st day of January, 2012.

Mr. Deepthi Amaratunga
Master of the High Court
Suva