Singh v Singh [2015] FJHC 335; HBC457.2002 (6 May 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 457 of 2002

BETWEEN:

ARUN SINGH
of 110 Milverton Road, Suva, Joiner/Carpenter
Plaintiff

AND:

PREM SINGH and BASANT KUMARI
as the Executor/Executrix and Trustees of the Estate
of Ranjit Singh, deceased of 110 Milverton Road, Suva
Defendants

Appearance : MR S CHANDRA of M C LAWYERS for the Plaintiff
MR S P SHARMA of PATEL SHARMA LAWYERS for the Defendants

Date of Judgment : 6 May 2015

JUDGMENT

[1] The Writ of Summons with Statement of Claim was issued by the Plaintiff on 5 November 2002 and in the Statement of filed on 11 February 2003 and prayed for the following reliefs:

"1. DECLARATION that the Plaintiff has the right to occupy the said property contained in Certificate of Title No. 9325.

2. A DECLARATION that the Defendants hold one half share of the land and building comprised in Certificate of Title No. 9325 upon CONSTRUCTIVE and RESULTING TRUST for the Plaintiff his executors and assigns.

3. AN INJUNCTION that the Defendants be stopped from denying the Plaintiff's interest in the said property contained in Certificate of Title No. 9325.

AN OR

4. Damages to compensate Plaintiff.

5. Interests and costs.

6. Any other relief this Honorable Court may grant in the circumstances of the case".

[2] Background

2.1 The Plaintiff is the son of the late Ranjit Singh and brother of the 1st named Defendant Prem Singh and the 2nd named Defendant is the wife of the 1st named Defendant.

2.2 The Plaintiff claims he was an occupier of the top floor of the property described in the Certificate of Title No. 9325 being Lot 44 on the DP2274.

2.3 It was agreed at the pre trial conference minuted filed on 12 July 2011 that the 1st named Defendant's father and the Defendants have been the registered proprietors of the Certificate of Title No. 9325.

2.4 It was also agreed in the year 1990 the Plaintiff was given permission by the father late Mr Ranjit Singh to occupy the top floor of the said property as a licensee free of any rental charges.

[3] The issues raised at the pre trial conference minutes were:

1. Whether the Plaintiff is a legal occupant and entitled to be in occupation of 110 Milverton Road property?

2. Whether the Plaintiff has made any developments to the property and if so, the Plaintiff is entitled to any compensation?

3. Whether the Defendants are entitled to an order for vacant possession of the property in all the circumstances?

In addition to the above issues, it was agreed by the counsel the relief claimed by the Plaintiff for a declaration that the Defendants hold one half share of the property in trust for the Plaintiff to be taken as an issue.

[4] Four witnesses were testified on behalf of the Plaintiff and one witness for the Defendants.

The Plaintiff's witnesses:

(i) The Plaintiff (Arun Singh)

(ii) Anil Prasad

(iii) Anil Kumar.

The Defendants' witness:

(i) The 1st named Defendant, Prem Singh.

[5] Evidence, Analysis and Determination
I have considered all the evidence led in this case and the documents tendered in the evidence and state as follows:

(a) The Plaintiff and his wife were given permission by Ranjit Singh late father of the Plaintiff to occupy upstairs flat (top floor) of the property situated at 110 Milverton Road;

(b) The Plaintiff and his wife came into the occupation in 1989 and they were in the wooden house adjoining the main structure and shifted to the top floor in 1990 with leave and license from the father;

(c) It is further established that at the time the Plaintiff's family was invited to the property, the top floor was not completed and it was in a livable condition when the Plaintiff and his family moved in and this is established by the evidence of all the witnesses;

(d) It was also established that the following work were to be attended after the Plaintiff and family moved in:

(i) completion of the ceiling;

(ii) fixing of kitchen wash basin and wash tub;

(iii) after ceiling was done balance of the electric works;

(iv) installation of doors;

(v) installation of louver blades.

(e) The question arises who completed this work if the Plaintiff's claim to be granted by this court the evidence led in this case is relevant. Arun Singh, the Plaintiff tendered the agreed bundle of documents. I consider P1 to P5 now to find as to whether the Plaintiff spent any monies on the property for the work to be carried out.

(f) P1 is a receipt dated 12/01/2001 from Sun Court Hardware which was issued for the purchase of Garnet Paper for $2. This was after the Plaintiff came into occupation in 1990. P2 is a proforma invoice which was not supported by a purchase receipt and/or no proof of supply. I deny to admit this as evidence. Same position with P2, P3 and P4. These invoices are undated and the Plaintiff failed to establish on which date these invoices were issued and the invoices are not supported by the proof of payment and supply and cannot be considered as expenses by the Plaintiff:

(i) Undated invoices issued by Sun Court itself states "prices are valid for one month from the date of this proforma invoice and subject to alterations without any further notice" as such these invoices cannot be taken into account as expenses incurred by the Plaintiff;

(ii) Proforma invoice is a document by a seller prepared for a customer for the products which are yet to deliver;

(iii) No evidence before me to establish goods in the proforma invoice were delivered or supplied. No evidence of payment. As such I deny that there was a payment totaling to $10,498.00 being expenses incurred for the Top Floor occupied by the Plaintiff in 1990s and the Plaintiff fails;

(iv) The Plaintiff in his evidence produced P5 and stated 50% of the Suva City Council rates were paid by the Plaintiff. He produced 5 receipts issued in 2000; 2001 and 2003 that is 10 years after coming into occupation at 110 Milverton Road. The agreement with the father was to pay half of the city rates and the Plaintiff was occupying rent free which was established by the evidence led before me;

(v) The Plaintiff also produced P6 which is a quotation dated 3rd March 1991 issued by Pacific Interiors (Pty) Limited. Again it was after the Plaintiff and his family moved into the top floor. The said quotation was for timber work louver frames, louver glass, doors and door jambs, floor covering and finishing in a sum of $8,300.00. P7 was a quotation issued by Modern Kitchen and Furniture Design dated 4th February 2001 in a sum of $19,700. I have compared both quotations P6 and P7 and find quotation tendered as Exhibit P7 is similar to the quotation P6 except for ceiling and bathroom and toilet fit out work. P6 and P7 were tendered as Exhibits by the Plaintiff's wife Shashi Singh. She was claiming that both these expenses were incurred and it was a total of ($8,300 + $19,700) $28,000.00.

(vi) P1 was dated 14 February 1991 and P7 was dated 3rd March 2001. It is obvious and evident that the witness lied to the court and I disbelieve her. In any event the quotations cannot be taken as evidence for expenses in absence of evidence for payment and completion of the work. I deny the Plaintiff's claim for expenses in P6 and P7.

(g) Anil Prasad gave evidence on behalf of the Plaintiff and stated he did the electric work and he was paid $500-$600 for electrical and labour work. He was living about 500 metres from 110 Milverton Road. Although, Plaintiff denied under cross-examination he was living in Raiwaqa before he moved into this house, his own witness stated the Plaintiff was living in Raiwaqa before he moved into 110 Milverton Road. This substantiates the evidence of the 1st named Defendant. He further stated that most of the carpentry work was done by the Plaintiff's father. The Plaintiff was a joiner not a carpenter. He further stated everyday he went there and the Plaintiff's father late Ranjit Singh gave instructions and witness did not know who bought the material and supplied for the work.

(h) Anil Kumar who claimed to be a carpenter work at the top floor in 2005 and was paid by the Plaintiff $1,500.00 and the Plaintiff paid the money.

(i) Prem Singh was testified on behalf of the Defendant. He explained in what circumstances the Plaintiff and his family were permitted by his late father to come into occupation at 110 Milverton Road. That is after seeing their poor standard of living at Vatuwaqa by the mother and they were invited to 110 Milverton Road. He admitted that Anil Kumar attended to electrical works which were left after fixing the ceiling. Materials bought by his late father for completion of the top floor when the Plaintiff moved in to the top floor it was livable and certain work was to be completed. The materials were bought by his late father through the Housing Authority loan for the completion of the balance work. He denied that Anil Kumar worked at the premises in 2005. His father asked the Plaintiff to leave the place after an incident which was admitted by the Plaintiff and his wife who gave evidence. The witness stated there was no promise by his father to give any share to the Plaintiff. Eviction case was filed against the Plaintiff by late Ranjit Singh. He sent an Eviction Notice and filed Action No. 50 of 2001. Under cross-examination the Plaintiff stated that there is a caveat lodged by the Plaintiff which barred the first named Defendant transfer the property. He further stated he too contributed for the loan repayment. All the materials were there for the completion in the premises since 1982. The Defendant's father made a Will in 2001 and he was the only beneficiary. There was no promise by the father to give the Plaintiff any share of the property. He tendered Document No. 7 of the Agreed Bundle of Documents Probate No. 39757 issued by the High Court appointing him and the 2nd named Defendant as Executors and Trustees. He further stated his late father filing action for eviction of the Plaintiff and not naming the Plaintiff as a beneficiary and naming the 1st named Defendant as the sole beneficiary to the estate and stated that his late father never had any intention to give a share of the property to the Plaintiff. The 1st named Defendant's evidence was credible. I conclude and the Plaintiff failed to challenge his evidence at cross examination he was firm and credible. I also further conclude as suggested by the Plaintiff's counsel in his cross-examination the Defendants had not produced documents, which cannot be taken into account since the 1st named Defendant has no obligation to provide such documents pertaining to the payment of loan or purchase of material in a situation where the Plaintiff failed to establish his claim. It is the obligation of the Plaintiff to prove his claim. If not the Defendants can keep silent. The Plaintiff fails.

[6] Having considered the evidence of the parties, I conclude:

1. The Plaintiff came into occupation of the top floor of the property situated at 110 Milverton Road at the request of late Ranjit Singh on the condition that the Plaintiff will pay the 50% of the rates. It was rent free and to occupy the top floor of the premises. There is no promise or agreement made to the Plaintiff by the late Ranjit Singh that half share will be given and no evidence led to prove such a promise or agreement. Accordingly, I conclude that there was no promise made by late Ranjit Singh to the Plaintiff that he will be entitled to the share in the property situated at 110 Milverton Road.

2. I conclude the Plaintiff failed to prove the money he spent with the consent of his father. I conclude any monies spent on the premises by the Plaintiff is for the upkeep and maintenance inter-alia:

(i) to upkeep and maintenance;

(ii) no rent being charged for last 25 years and the Plaintiff was staying in the premises without any promise to give him any share by his father.

As such the Plaintiff is not entitled to claim any damages.

3. I further conclude that the Defendants were aware that certain work was left with the premises and the Defendants admitted in evidence. However, 2nd named Defendant denied that materials were supplied by the Plaintiff and he failed to substantiate that materials were purchased and supplied by him for the balance work. Considering all the evidence led in this case, I accept the Defendants contention. As such the Plaintiff fails.

[7] Now I turn that the Plaintiff's claim of declaration for entitlement of half share on applying the principles of "Promissory estoppels", and "Constructive and Resulting Trust". Application of these principles depends on the case law.

7.1 Promissory Estoppel
Doctrine of Promissory Estoppel generally helps to recover the losses. Injured party can recover damages if those damages were the result of a promise made by the promissory and promise was significant enough to move the promise to act on it. The elements that must be established are:

(i) Promisor made a promise significant to cause the promise to act on it;

(ii) Promisee relied upon it;

(iii) Promisee suffered a significant detriment;

(iv) Relief can only come in the form of the promissory fulfilling the promise.

The evidence by the Plaintiff did not prove that there was a promise to give share to the Plaintiff. In fact the late Ranjit Singh allowed the Plaintiff to live in the top floor, considering his sympathetic and poor living condition prevailed at that time. The Plaintiff did not have any cause to believe that there was a promise as such. I conclude that there was no detrimental reliance for the Plaintiff to act based on non existed promise to spend monies on the property. In addition my findings are no proof for major portion of the alleged expenses. There is no basis to apply this principle in the present case and the Plaintiff fails.

[8] Constructive and Resulting Trust
8.1 Constructive Trust, are trusts that may be implied in the absence of a declaration of trust; where a trustee has induced another to act to their detriment in the belief that if they do so act to their detriment they would acquire beneficial interest in the property. Lord Diplock in the case of Gissing vs. Gissing [1971] AC 888:

"A resulting, implied or constructive trust – and it is unnecessary for present purposes to distinguish between these three classes of trust – is created by a transaction between the Trustee and the cestui que trust in connection with the acquisition by the trustee of a legal estate in land, whenever the trustee has so conducted himself that it would be inequitable to allow him to deny to the cestui que trust a beneficial interest in the land acquired. And he will be held so to have conducted himself if by his words or conducts he has induced the cestui que trust to act to his own detriment in the reasonable belief that by so acting he was acquiring a beneficial interest in the land...........".

As I determined earlier the Plaintiff did not establish himself as cestui que (beneficiary) or any of the above requirements to apply the principles of Promissory of Estoppel and/or Constructive and Resulting Trusts.

Arriving at the above conclusion, I also considered the cases of Nagaiya vs. Subhaiya [1969] 15 FLR 212. In the case of Nisa vs. Muniff [1999] 45 FLR 246, Shameem J. applied the principles stated by Lord Diplock in the cited case of Gissing vs. Gissing.

I further cite the case of Sami vs. Wati HBC [2010] FJHC 279 HBC 35 of 2005 (decided on 7 June 2010) Calanchini J. (as then he was) stated:

"Where there is no express declaration of a trust, it is necessary to determine whether there existed a common intention of the parties concerning the equitable ownership of the land. In a case such as the present where the legal title was held in the deceased's name alone, the presumption is that the deceased was the sole owner of the equitable interest.

However, that presumption may be rebutted. For instance, if the evidence established that there was an agreement, arrangement or understanding between the Plaintiff and the deceased as to the beneficial ownership of the land, then the Court would give effect to that common intention by means of a constructive trust or by means of a proprietary estoppel if the Plaintiff had suffered detriment.

Furthermore, in the event that the Plaintiff had contributed to the purchase price of the land and/or to the improvements or any other financial contribution, effect would be given to the common intention of the parties by way of a constructive trust or proprietary estoppel.

Proprietary estoppel enables an equitable interest to be granted to a person who has been induced to suffer detriment upon reliance on a representation that the Plaintiff would acquire ownership of the land as a result. Under the remedy the court may award one of a number of rights ranging from freehold title through to merely equitable compensation in money".

The said case too supports my conclusions and that there was no evidence to the effect that there was any common interest between late Ranjit Singh and the Plaintiff, and the Plaintiff had any beneficial interest over the property at 110 Milverton Road. Neither the Plaintiff was induced to suffer detriment.

8.2 Accordingly, I answer the issues raised at the pre-trial conference minutes as follows:

1. The Plaintiff is not entitled to occupy the top floor of the property situated at No. 110 Milverton Road.

2. The Plaintiff had only spent for the upkeep and maintenance of the property and he failed to establish expenses for any substantial development in addition to the monies spent on upkeep of the property. The expenses incurred for maintenance and upkeep cannot be considered by this court to award any compensation for the reason that he had already benefitted by staying in the premises for more than 24 years free of rent.

3. Continuation of the occupation and existence of the caveat will be detrimental to the rights of the Defendant and I conclude that the caveat should be cancelled and discharged as claimed by the Defendant in his Statement of Defence.

8.3 However, I have taken into consideration the fact that the Plaintiff was in the premises for a long period of time, sufficient time should be granted for him to vacate the top floor of No. 110 Milverton Road and I grant 6 months time to the Plaintiff to vacate the premises.

Orders of the court:

1. The Plaintiff's Action is dismissed.

2. The Caveat No. 492608 is removed and discharged on the Certificate of Title No. 9325.

3. Order the Plaintiff to vacate the top floor of the premises No. 110 Milverton Road and the said order shall come into effect after 5th December 2015 and during the said period the Defendant is ordered not to interfere with possession and occupation of the Plaintiff.

4. No order for costs and the parties should bear their own costs.

Delivered at Suva this 6th Day of May 2015

C. KOTIGALAGE
JUDGE