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High Court of Fiji |
IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC 03 of 2015
IN THE MATTER of Section 169 of the Land Transfer Act, Cap. 131.
BETWEEN:
KAMLESH PRASAD of Vutuni, Ba, Fiji
PLAINTIFF
AND:
KRISHNEEL PRAKASH of Vutuni, Ba, Fiji
DEFENDANT
Mr. Jitendra Reddy for the Plaintiff
The Defendant is in person
Date of Hearing: - 07th May 2015
Date of Ruling : - 11th September 2015
RULING
(A) INTRODUCTION
(1) The matter before me stems from the Plaintiff's Originating Summons dated 23rd December 2014, made Pursuant to Section 169 of the Land Transfer Act, for an Order for Vacant Possession against the Defendant.
(2) The Defendant is summoned to appear before the Court to show cause why he should not give up vacant possession of the Plaintiff's property comprised in Instrument of Tenancy No:- 10248, NLTB Reference No:- 4/1/50033805, containing an area of approximately 4.3640 hectares.
(3) The application for eviction is supported by an affidavit sworn by the Plaintiff on 30th December 2014.
(4) The application for eviction is strongly resisted by the Defendant.
(5) The Defendant filed an Affidavit in Opposition opposing the application for eviction followed by an Affidavit in Reply thereto.
(6) The Plaintiff and the Defendant were heard on the Originating Summons. They made oral submissions to court. In addition to oral submissions, the Plaintiff filed a careful and comprehensive written submission for which I am most grateful.
(B) THE LAW
(1) In order to understand the issues that arise in the instant case, I bear in mind the applicable law and the judicial thinking reflected in the following decisions.
(2) Sections from 169 to 172 of the Land Transfer Act (LTA) are applicable to summary application for eviction.
Section 169 states;
"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) ...
Section 170 states;
"The summons shall contain a description of the land and shall require the person summoned to appear at the court on a day not earlier than sixteen days after the service of the summons."
Section 171 states;
"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.
Section 172 states;
"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, mortgage or lessor or 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 person summoned to which he may be otherwise entitled:
Provided also that in the case of a lessor against a lessee, if the lessee, before the hearing, pay or tender all rent due and all costs incurred by the lessor, the judge shall dismiss the summons.
[Emphasis provided]
(3) The procedure under Section 169 was explained by Pathik J in Deo v Mati [2005] FJHC 136; HBC0248j.2004s (16 June 2005) as follows:-
The procedure under s.169 is governed by sections 171 and 172 of the Act which provide respectively as follows:-
"s.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."
"s.172. 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, mortgagee or lessor or he may make any order and impose any terms he may think fit."
It is for the defendant to 'show cause.'
(4) The Supreme Court in considering the requirements of section 172 stated in Morris Hedstrom Limited v. Liaquat Ali (Action No. 153/87 at p2) as follows and it is pertinent:
"Under Section 172 the person summoned may show cause why he refused to give possession of the land and 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."
(5) The requirements of section 172 have been further elaborated by the Fiji Court of Appeal in Azmat Ali s/o Akbar Ali v Mohammed Jalil s/o Mohammed Hanif (Action No. 44 of 1981 – judgment 2.4.82) where it is stated:
"It is not enough to show a possible future right to possession. That is an acceptable statement as far as it goes, but the section continues that if the person summoned does show cause the judge shall dismiss the summons; but then are added the very wide words "or he may make any order and impose any terms he may think fit" These words must apply, though the person appearing has failed to satisfy the judge, and indeed are often applied when the judge decides that an open court hearing is required. We read the section as empowering the judge to make any order that justice and the circumstances require."
(C) THE FACTUAL BACKGROUND
(1) What are the facts here? It is necessary to approach the case through its pleadings/affidavits, bearing all those legal principles in my mind.
(2) To give the whole picture of the action. I can do no better than set out hereunder the main averments/assertions of the Pleadings/Affidavits.
(3) The Plaintiff in his affidavit in support deposed inter alia;
Para (2) THAT I am the lessee of the premises and land comprised in Instrument of Tenancy No: 10248 NLTB Reference Number 4/1/50033805 containing an area of approximately 4,3460 hectares, owned by MATAQALI: NAMONO; TOKATOKA situated at Vutuni, Ba (hereinafter referred to as the "said property"). A copy of the lease is annexed hereto marked as annexure "KP A".
(3) THAT the Defendant and his families are occupying part of the said property.
(4) THAT on numerous occasions I have demanded the Defendant and his families to vacate and deliver up vacant possession of the said property but they refused to vacate the same. I through my solicitors issued an eviction notice against the Defendant and his families which was duly served upon the Defendant on the 27th day of November 2014. Copy of the said Notice and Affidavit of Service are annexed hereto marked as annexure "KP B". And "KP C". Respectively.
(5) THAT the Defendant and his families are restraining me from entering part of my own property.
(6) THAT the said land and property belongs to me and I am the legal owner of the said Land and there was no consent given by me to the Defendant and his family to reside thereon by me.
(7) THAT the Defendant and his families are trespasser, nuisance and a disturbance to me.
(8) THAT the Defendant and his families are harassing me and my families.
(4) The Defendant for his part in seeking to show cause against the Summons, filed an Affidavit in Opposition, in which he deposed inter alia;
Para (3) That I am not aware of the contents of paragraph 2 of the said affidavit and if the Plaintiff is the lessee of the aforesaid lease and land, he had obtained it by deception and without my knowledge.
(4) I admit paragraph 3 of the said Affidavit.
(5) I admit receiving notice to vacate from the Plaintiff's Solicitors. The Plaintiff has no right to evict me from the said land.
(6) I deny the contents of paragraphs 5, 6, 7 and 8 of the said Affidavit.
(7) That the Plaintiff and myself are both step brothers. Our father is the same.
(8) That I had always been living with my father. My father was working for Fiji Sugar Corporation Ltd until he retired in 1992.
(9) When my father, namely Ram Chandar retired from the FSC he then bought an Agricultural and in Naria, Rakiraki in the sum of $23,000.00. The land was purchased after it was mortgaged to Bank of Baroda. My father had transferred the land in Rakiraki to my mother's name.
(10) After the land in Rakiraki was purchased my father, mother and myself moved to Rakiraki to cultivate the farm.
(11) When my parents and me moved to Rakiraki, one of my elder step brother namely Shiu Prakash was left by my father to farm the land at Vutuni in Ba. At that time the land was covered by an iTaukei Lease and sugar cane contract number 223 Varoka Sector (hereinafter referred to as the "said land"). This lease was 32 acres. My brother Shiu Prakash was cultivating this land (the same land subject to this proceedings) and harvesting cane.
(12) The Plaintiff was residing at Tauvegavega in Ba with his mum.
(13) My father was diabetic and was unable to work in the farm. At that time I was attending Naria Bhartiya Primary School. My father was alone and he could not farm the land properly.
(14) After sometime, in 1997 the cane farm land in Rakiraki was sold by Bank of Baroda in a Mortgage Sale as my father was unable to pay his debts to the Bank.
(15) That in 1997, my parents and myself returned to the said land subject to this proceedings at Vutuni in Ba. When we arrived back in Vutuni, my father then constructed his own house on the said land with his own money, I was living in the house with my parents and still live in the said house with my mother.
(16) My elder brother namely Shiu Prakash who was cultivating the said land which comprised of 32 acres in Vutuni, Ba migrated to the United States of America.
(17) I had four other step brothers namely, Kamlesh Prakash (Plaintiff), Shiu Prakash, Bimal Prakash and Amar Prakash.
(18) When my father and I returned back to Vutuni in Ba, none of them were living on the said land at Vutuni in Ba apart from my eldest brother namely, Shiu Prakash.
(19) Shiu Prakash had migrated to the USA. The Plaintiff and Bimal Prakash were living with their mum at Rauvegavega in Ba and Amar Prakash had gone to live at his inlaws place in Tavua.
(20) When Shiu Prakash migrated to USA, my father then went and persuaded the Plaintif and my other two step brothers to come back and stay together on the said land at Vutuni in Ba and cultivate the farm. He had promised to give them shares.
(21) My father then distributed shares to all my step brother including me. We were all allocated seven (7) acres each. The allocation was made without survey. My father had marked the relevant boundaries for each of us brothers and we were to cultivate and farm our share of land allocated by our father.
(22) All of us were cultivating and farming the cane farm in our own shares and boundaries. All the sugar cane harvested was sold to the Fiji Sugar Corporation on farm number 223 Varoko Sector. The farm and lease was still registered in my father's name.
(23) After sugar cane was delivered to the Rarawai Mill, we all kept our own tonnage of sugar cane sold and whenever there was cane payment, the money used to be paid into our father's account with Bank of Baroda, Ba Branch and my father used to withdraw the money and distribute to all my brothers and me according to our relevant tonnages. My father used to prepare all the accounts and distribute the money to all of us.
(24) This arrangement continued from 1998 until my father died on 10th August, 2006.
(25) When my father died in 2006 I was still schooling at DAV College in Ba and I was doing vocational studies in Carpentry and Joinery.
(26) My father was illiterate and was unable to read and write English. I remember that sometimes in January, 2006 my brother the Plaintiff was working for FSC at Rarawai Mill in Ba. He had brought some forms to my dad to sign and told my dad that it was to do with fertilizer and the field officer had asked him to sign the form. My father was illiterate and he had signed the form.
(27) My father and I were not aware that the previous lease issued on the said land had expired and that the Plaintiff had got my father to sign some papers to get the new leased issued to his name.
(28) The Plaintiff got a new Instrument of Tenancy Folio 10248 issued to his name in February, 2006. He also had the cane contract number changed to 1983. The Plaintiff never told my father that a new lease was issued to his name. He kept it secret.
(29) That in 2006 before Diwali celebration there was a special payment by FSC to farmers to celebrate Diwali and when my father went to the Bank to uplift the special payment he was then advised by the Bank that the money had come to the bank in the name of the Plaintiff and that the cane contract number had changed.
(30) My father was in a shock when heard the news from the Bank Officer. My father then asked the Plaintiff why he had done this. The Plaintiff advised my father that he wanted the land and now he has got it now.
(31) After the new lease was issued to the Plaintiff my father then had made an arrangement with the Plaintiff that I will continue to cultivate and farm my seven (7) acres of the land and that the aforesaid arrangement will continue forever. The Plaintiff had agreed to this.
(32) When the arrangement of cultivation was agreed into between the Plaintiff and my father, I continued to cultivate my share of the seven (7) acres. At that time I was still schooling and my father was cultivating the seven acres. My father also used to hire some labourers to work on the farm when he was sick.
(33) When cane was harvested, the Plaintiff continued to distribute my share of the cane proceeds to me according to our tonnage.
(34) This arrangement continued from February, 2006 until august, 2010 until my father died. My father and me were paid our shares of cane proceeds according to our tonnage.
(35) After the death of my father, the Plaintiff and my other step brothers approached me and advised me that since I was still schooling, they did not want my studies to be effected and asked me to concentrate on my studies and that they will cultivate and farm my share of seven (7) acres and that they will continue paying me according to my tonnage.
(36) Since the Plaintiff was elder then me and I used to respect him, I agreed and handed over the seven acres to the Plaintiff to cultivate. I was of the impression that the Plaintiff was helping me in my studies and I started to concentrate on my studies.
(37) That whenever cane was harvested, the Plaintiff did not pay me any money for my share of the seven acres. I demanded money from him but he advised me that he had cultivated the farm and that he will keep the money.
(38) I was alone and I did not want to engage into any form of argument. My mother is also alone and we continued to live in the house, which was built by my father. Since the death of my father in August 2010, the Plaintiff has not paid my any shares of the cane proceeds from my share of seven acres.
(39) Since the death of my father in August, 2010. I have never said anything to the Plaintiff or to my other step brothers. I have been working at FSC in the Traffic Section since 2012 and I do not interfere in the Plaintiff's affairs.
(40) I am married and have two children. My mother also lives with me.
(41) The problem stared when I requested the Plaintiff sometimes in January, 2014 to sign consent for me to connect electricity to my premises. Initially he had agreed but later refused to sign the consent.
(42) My electrician made all efforts to obtain consent from the Plaintiff to have the electricity connect to my home but finally the Plaintiff's wife told my electrician that they will not consent to the connection of electricity to my premises.
(43) After the Plaintiff refused to sign the consent, I still did not do anything and continued to live my life with my family in darkness. All of us live nearby in the said lease. My other brother's including the Plaintiff have electricity connected to their homes but the Plaintiff had refused to consent to me connecting electricity to my residence. I am deprived of a very basic need.
(44) The Plaintiff's wife has been a cause to all the problems. She has been threatening me and my family to go from the land. My step brothers don't like my mum as she is their step mum. I cannot leave my mum as she was married to my father and she has spent all her life with my father.
(45) The Plaintiff and my other step brother's have grouped together to evict me and my mother. The only reason is that I am their step brother and my mum is their step mother.
(46) However, it is not my fault to be their step brother as it was their own dad who had married my mother and I was born from the marriage.
(47) I had lived on the said land since 1998 and I am still living on the said lease.
(48) I am not any nuisance to the Plaintiff or to his family. The Plaintiff and his wife have been asking us to vacate the land and go. I have nowhere to go, I have lived on the said land for the last 17 years and I am entitled to live there. My father and I were both cultivating the said lease and land.
(49) The Plaintiff had agreed with my father to allow and continue with the arrangement that was done by my late father to continue to cultivate the seven acres of land. Had the Plaintiff not agreed to that arrangement, my father would had purchased some other land and relocated us.
(50) That when the Plaintiff refused to sign consent for me to connect electricity to my premises I then sought the assistance of the District Officer, Ba to convince the Plaintiff to sign the consent. The Plaintiff still refused to do so. I annex hereto a letters marked "A" and "B" from the District Officer, Ba.
(51) After the District Officer failed to convince the Plaintiff to sign the consent, the Plaintiff then issued the notice to vacate the said land on me.
(52) That my other two step brother's namely Amar Prakash and Bimal Prakash are still on the arrangement that was proposed by my late father. They are still cultivating their seven (7) acres of land and the Plaintiff is still paying them their share according to their respective tonnage.
(53) The Plaintiff has obtained the new Instrument of Tenancy by deceiving my late father.
(5) The Plaintiff filed an affidavit in rebuttal deposing inter alia;
Para (5) That I join issues with the Defendant in his answer in so far as the same consists of denials, otherwise deny the rest of the contents of his answer and put the Defendant to strict proof.
(6) That I deny the contents of paragraph 3 of the affidavit in that I obtained the property by deception. I say further that I applied for a lease with NLTB and I was offered 12 acres of land. I accepted the offer and have validly purchased the said 12 acres of land by taking a loan from the Sugar Cane Growers Fund and I have been cultivating the said land since then. I further say that by staying free on the said land does not entitle the Defendant from having possession of the same. (Annexed herewith marked with letter "A", is a offer letter from NLTB, Annexure "B" is the approval of my loan from Sugar Cane Growers Fund to purchase the said land, Annexure "C" is the Crop Lien registered in favour of the Sugar Cane Growers Fund, Annexure "D" is the mortgage of the land in favour of Sugar Cane Growers Fund and Annexure "E" is approval of a further loan for Farm House repairs).
(7) That in reply to paragraph 5 of the affidavit, I say that since I am the registered lessee of the said property, I did not give the Defendant any licence to occupy my property, I have every right to evict him. It is for this very reason that I have filed my application to evict him.
(8) That I join issues with the Defendant in paragraph 6 of his affidavit in so far as the same is denied.
(9) That I admit paragraphs 7, 8, 9 and 10 of the affidavit but further say that it has nothing to do with this application as they are non issues and are supported by any evidence.
(10) That in reply to paragraph 11 of the affidavit, I say that the lease the Defendant is talking about had expired. That lease contained 32 acres of land and that lease was never ever renewed by NLTB. My lease is a new one issued to me by NLTB for 12 acres of land.
(11) That I deny paragraph 12 of the affidavit as I have always stayed at Vutuni in Ba, and further say that it is immaterial where I was staying.
(12) That I have no knowledge of paragraphs 13 and 14 of the affidavit and further say that they are non-issues.
(13) That I deny the contents of paragraphs 15 and 16 of the affidavit and further say that they are non-issues.
(14) That I admit paragraph 17 of the affidavit but that does not have anything to do with this application.
(15) That I deny the contents of paragraphs 18 to 23 and further say that all those are mere assertions and have nothing to do with this application since I am the outright lessee of the said property.
(16) That I have no knowledge of paragraphs 24 and 25 of the affidavit and cannot comment on that and further say that whatever has been stated are not supported by any evidence.
(17) That in reply to the contents of paragraph 26 and 27 of the affidavit, I say that whatever is deposed by the Defendant are mere assertions and are baseless and without merits as they are not supported by evidence.
(18) That in response to paragraph 28, I admit that a new lease for 12 acres of land was issued to my name. I obtained it in a proper and legal manner and paid for the same. There was no need for me to tell anyone about the new lease.
(19) That in reply to the contents of paragraphs 29 to 52 of the affidavit, I state on oath that they are all non-issues in this matter and should be totally ignored. The only issue in this matter is that I am the legally registered lessee of the subject land and I am entitled to vacant possession since I did not give my consent to the Defendant to stay on that land.
(20) That in reply to paragraph 53 of the affidavit, I say that I did not deceive anybody but I applied for and was offered the 12 acre land and I have paid for it and I am cultivating it and I am entitled to it as a right.
(D) ANALYSIS
(1) This is an application brought under Section 169 of the Land Transfer Act, [Cap 131].
Under section 169, certain persons may summon a person in possession of land before a judge in chambers to show cause why that person should not be ordered to surrender possession of the land to the Claimant.
For the sake of completeness, section 169 of the Land Transfer Act, is reproduced below;
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) a lessor with power to re-enter where the lessee or tenant is in arrear for such period as may be provided in the lease and, in the absence of any such provision therein, when the lessee or tenant is in arrear for one month, whether there be or be not sufficient distress found on the premises to countervail such rent and whether or not any previous demand has been made for the rent;
(c) a lessor against a lessee or tenant where a legal notice to quit has been given or the term of the lease has expired.
I ask myself, under which limb of section 169 is the application being made?
Reference is made to paragraph (02) of the Affidavit in Support of the application for vacant possession.
"THAT I am the lessee of the premises and land comprised in Instrument of Tenancy No: 10248 NLTB Reference Number 4/1/50033805 containing an area of approximately 4,3460 hectares, owned by MATAQALI: NAMONO; TOKATOKA situated at Vutuni, Ba (hereinafter referred to as the "said property"). A copy of the lease is annexed hereto marked as annexure "KP A".
(Emphasis Added)
Section 169 (a) of the Land Transfer Act, Cap 131, requires the Plaintiff to be the last registered proprietor of the land.
The term "proprietor" is defined in the Land Transfer Act as "the registered proprietor of land, or of any estate or interest therein".
The term "registered" is defined in the Interpretation Act, Cap 7, as "registered used with reference to a document or the title to any immovable property means registered under the provisions of any written law for the time being applicable to the registration of such document or title"
According to the "Instrument of Tenancy" No:- 10248, NLTB Ref. No:- 4/1/50033805 (Annexure "KPA") the Plaintiff is the lessee of the subject land. The Instrument of Tenancy is registered with the Registrar of Deeds on 10th February 2006. Therefore, the Plaintiff holds a registered lease and could be characterised as the last registered proprietor.
On the question of whether a lessee can bring an application under Section 169 (a) of the Land Transfer Act, if any authority is required, I need only refer to the sentiments expressed by Master Robinson in "Michael Nair v Sangeeta Devi", Civil Action No: 2/12, FJHC, decided on 06.02.2013. The learned Master held;
"The first question then is under which ambit of section 169 is the application being made? The application could not be made under the second or third limb of the section since the applicant is the lessee and not the lessor as is required under these provisions. But is the applicant a registered proprietor? A proprietor under the Land Transfer Act means the registered proprietor of any land, or of an estate or interest therein". The registration of the lease under a statutory authority, the iTLTB Act Cap 134, creates a legal interest on the land making the applicant the registered proprietor of the land for the purposes of the Land Transfer Act. He can therefore make an application under section 169 of the Land Transfer Act".
The same rule was again applied by the learned Master in "Nasarawaqa Co-operative Limited v Hari Chand", Civil Action No: HBC 18 of 2013, decided on 25.04.2014. The learned Master held;
"It is clear that the iTLTB as the Plaintiff's lessor can take an action under section 169 to eject the Plaintiff. This is provided for under paragraphs [b] &[c]. For the lessor to be able to eject the tenant or the lessee it must have a registered lease. It is not in dispute that the Plaintiff holds a registered lease, the lease is an "Instrument of Tenancy" issued by the iTLTB under the Agricultural Landlord and Tenancy Act. It is for all intents and purposes a native lease and was registered on the 29 November 2012 and registered in book 2012 folio 11824. It is registered under the register of deeds. There is nothing in section 169 that prevents a lessor ejecting a lessee from the land as long as the lease is registered. How will the lessee then eject a trespasser if the lessor in the same lease can use section 169? The lessee under section 169 can eject a trespasser simply because the lessee is the last registered proprietor. The Plaintiff does not have to hold a title in fee simple to become a proprietor as long as he/she is the last registered proprietor. A proprietor is defined in the Land Transfer Act as "proprietor" means the registered proprietor of land, or of any estate or interest therein". The Plaintiff has an interest by virtue of the instrument of tenancy and therefore fits the above definition and can bring the action under section 169."
A somewhat similar situation as this was considered by His Lordship Justice K.A. Stuart in Housing Authority v Muniappa 1977, FJSC. His Lordship held that the Plaintiff Housing Authority holds a registered lease therefore it could be characterised as the last registered proprietor.
In Habib v Prasad [2012] FJHC 22, Hon. Madam Justice AngalaWati said;
"The word registered is making reference to registration of land and not the nature of land. If the land is registered either in the Registrar of Titles Office or in the Deeds Office, it is still registered land. This land has been registered on 4th March, 2004 and is registered at the
Registrar of Deeds Office, it is still registered land. The registration is sufficient to meet the definition of registered in the Interpretation Act Cap 7:-
"Registered" used with reference to a document or the title to any immoveable property means registered under the provision of any written law for the time being applicable to the registration of such document or title".
(2) Before determining against the Defendant, the real issue and the only issue which this Court has to consider at the outset is whether the Plaintiff has satisfied the threshold criteria in Section 170 of the Land Transfer Act.
Pursuant to Section 170 of the Land Transfer Act;
(1) the Summons shall contain a "description of the Land"
AND
(2) shall require the person summoned to appear in the court on a day not earlier than "sixteen days" after the service of Summons.
The interval of not less than 16 days is allowed to give reasonable time for deliberations and to prevent undue haste or surprise.
I ask myself, are these requirements sufficiently complied with by the Plaintiff?
The Originating Summons filed by the Plaintiff does contain a description of the subject land. The subject land is sufficiently described. For the sake of completeness, the Originating Summons is reproduced below.
SUMMONS FOR VACANT POSSESSION
UNDER SECTION 169 OF LAND TRANSFER ACT
LET parties concerned attend a Master in Court at the High Court of Fiji at Lautoka on Friday the 13th day February, 2015 at the hour of 8.30 o'clock in the forenoon on the hearing of an application by the abovenamed Plaintiff that the abovenamed Defendant KRISHNEEL PRAKASH DO SHOW CAUSE why they should not vacate and deliver up immediate possession to the Plaintiff of all that part of land comprised in Instrument of Tenancy No:- 10248 NLTB REFERENCE NUMBER 4/1/50033805 containing an area of approximately 4.3460 hectares, owned by MATAQALI; NAMONO;TOKATOKA being occupied by the Defendant, his families and FOR THE FOLLOWING ORDERS:-
The Defendant and his families do give immediate vacant possession to the Plaintiff of the premises and land comprised in Instrument of Tenancy No: 10248 NLTB REFERENCE NUMBER 4/1/50033805 containing an area of approximately 4.3460 hectares, owned by MATAQALI: NAMONO;TOKATOKA
AND FOR AN ORDER that the costs of this Application be paid by the Defendants to the Plaintiff on an Solicitor Client Indemnity basis.
The plaintiff intend to read the Affidavit filed herein at the hearing of the application.
This Summons is filed pursuant to Section 169 to 173 of the Land Transfer Act (Cap 131, Laws of Fiji), the Rules of high Court and the Inherent Jurisdiction of this Court.
DATED this 23rd day of December, 2014
REDDY & NANDAN LAWYERS
(signed)
SOLICITORS FOR THE PLAINTIFF
(Emphasis Added)
In light of the above, I have no doubt personally and I am clearly of opinion that the first requirement of Section 170 of the Land Transfer Act, has been complied with.
Now comes a most relevant and, as I think, crucial second mandatory requirement of Section 170 of the Land Transfer Act.
The Originating Summons was returnable on 13th February 2015. According to the Affidavit of Service filed on 03rd February 2015 by the Plaintiff, the Originating Summons was served on the Defendant on 21st January 2015.
Therefore the Defendant is summoned to appear at the Court on a date not earlier than "sixteen days" after the Service of Summons. Therefore, the second express requirement of Section 170 of the Land Transfer Act, too has been complied with.
Having carefully considered the pleadings, evidence and oral submissions placed before this Court, it is quite possible to say that the Plaintiff has satisfied the threshold criteria in Section 169 and 170 of the Land Transfer Act. The Plaintiff has established a prima facie right to possession. Now the onus is on the Defendant to establish a lawful right or title under which he is entitled to remain in possession.
In the context of the present case, I cannot help, but recall the rule of law enunciated in the following judicial decisions.
In the case of VanaAerhartRaihman v Mathew Chand, Civil Action No: 184 of 2012, decided on 30.10.2012, the High Court held;
"There is no dispute between parties as to the locus standi of the Plaintiff, and once this is established the burden of proof shifted to the Defendant to prove his right to possession in terms of the Section 172 of the Land Transfer Act."
In the case of Morris HedstromLimited –v- Liaquat Ali CA No: 153/87, the Supreme Court said that:-
"Under Section 172 the person summoned may show cause why he refused to give possession of the land and 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)
Also it is necessary to refer to section 172 of the Land Transfer Act, which states;
"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, mortgage or lessor or 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 person summoned to which he may be otherwise entitled:
Provided also that in the case of a lessor against a lessee, if the lessee, before the hearing, pay or tender all rent due and all costs incurred by the lessor, the judge shall dismiss the summons".
[Emphasis provided]
(3) What is the Defendant's reason refusing to deliver vacant possession?
I am once again reitering paragraphs (03), (27), (28), (31), (32), (42), (48), (49) and (53) of the Affidavit in Opposition filed
by the Defendant.
Para (3) That I am not aware of the contents of paragraph 2 of the said affidavit and if the Plaintiff is the lessee of the aforesaid lease and land, he had obtained it by deception and without my knowledge.
(27) My father and I were not aware that the previous lease issued on the said land had expired and that the Plaintiff had got my father to sign some papers to get the new leased issued to his name.
(28) The Plaintiff got a new Instrument of Tenancy Folio 10248 issued to his name in February, 2006. He also had the cane contract number changed to 1983. The Plaintiff never told my father that a new lease was issued to his name. He kept it secret.
(31) After the new lease was issued to the Plaintiff my father then had made an arrangement with the Plaintiff that I will continue to cultivate and farm my seven (7) acres of the land and that the aforesaid arrangement will continue forever. The Plaintiff had agreed to this.
(32) When the arrangement of cultivation was agreed into between the Plaintiff and my father, I continued to cultivate my share of the seven (7) acres. At that time I was still schooling and my father was cultivating the seven acres. My father also used to hire some labourers to work on the farm when he was sick.
(42) My electrician made all efforts to obtain consent from the Plaintiff to have the electricity connect to my home but finally the Plaintiff's wife told my electrician that they will not consent to the connection of electricity to my premises.
(48) I am not any nuisance to the Plaintiff or to his family. The Plaintiff and his wife have been asking us to vacate the land and go. I have nowhere to go, I have lived on the said land for the last 17 years and I am entitled to live there. My father and I were both cultivating the said lease and land.
(49) The Plaintiff had agreed with my father to allow and continue with the arrangement that was done by my late father to continue to cultivate the seven acres of land. Had the Plaintiff not agreed to that arrangement, my father would had purchased some other land and relocated us.
(53)The Plaintiff has obtained the new Instrument of Tenancy by deceiving my late father.
(4) As I understand it, now comes a most material and the crucial fact.
There are five problems that concern me.
First, whether the Plaintiff holds an indefeasible title?
Secondly, is the alleged verbal consent granted to the Defendant by the Plaintiff, to occupy and cultivate, seven (7) acres of the subject land, "a dealing in land" within the meaning of Section 12 of the Native Land Trust Act?
Thirdly, whether the alleged verbal consent is in breach of Section 12 of the Native Land Trust Act?
Fourthly, is there any equitable estoppels or lien arising in the defendant's favour on the land in question?
Fifthly, Is the Defendant's occupation of the subject land for whatever length of time, a circumstance giving rising to any form of proprietary estoppels or equity?
(5) Now I proceed to address the first question posed at paragraph (4).
A cursory glance at the Affidavit in Opposition filed by the Defendant reveals that the Defendant alleges fraud against the Plaintiff.
Reference is made to paragraphs (03), (27) and (53) of the Affidavit in Opposition filed by the Defendant.
The Defendant deposes;
(3) That I am not aware of the contents of paragraph 2 of the said affidavit and if the Plaintiff is the lessee of the aforesaid lease and land, he had obtained it by deception and without my knowledge.
(27) My father and I were not aware that the previous lease issued on the said land had expired and that the Plaintiff had got my father to sign some papers to get the new leased issued to his name.
(53) The Plaintiff has obtained the new Instrument of Tenancy by deceiving my late father.
The proposition advanced by the Defendant requires some examination of the law regarding "Indefeasibility of Title".
Sections 38 and 39 (1) of the Land Transfer Act, can be regarded as the basis of the concept of "indefeasibility of title" of a registered proprietor. Under Torrens System of land law the registration is everything and only exception is fraud.
I should quote Section 38 and 39 (1) of the Land Transfer Act, which provides;
Section 38 provides;
Registered instrument to be conclusive evidence of title
"38. No instrument of title registered under the provisions of this Act shall be impeached or defeasible by reason or on account of any informality or in any application or document or in any proceedings previous to the registration of the instrument of title.
Section 39 (1) provides;
"39-(1) Notwithstanding the existence in any other person of any estate or interest, whether derived by grant from the Crown or otherwise, which but for this Act might be held to be paramount or to have priority, the registered proprietor of any land subject to the provisions of this Act, or of any estate or interest therein, shall except in case of fraud, hold the same subject to such encumbrances as may be notified on the folium if the register, constituted by the instrument of title thereto, but absolutely free from all other encumbrances whatsoever except...
I am conscious of the fact that section 40 of the Land Transfer Act seeks to dispel Notice of a Trust or unregistered interest in existence in the following manner;
40.Except in the case of fraud, no person contracting or dealing with or taking or proposing to take a transfer from the proprietor of any estate or interest in land subject to the provisions of this Act shall be required or in any manner concerned to inquire or ascertain the circumstances in or the consideration for which such proprietor or in any previous proprietor of such estate or interest is or was registered, or to see to the application of the purchase money or any thereof, or shall be affected by notice, direct or constructive, of any trust or unregistered interest, any rule of law or equity to the contrary notwithstanding, and the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud." (underlining mine).
With regard to the concept of "indefeasibility of title of a registered proprietor", the following passage from the case of "Eng Mee Young and Others (1980) Ac 331 is apt and I adopt it here;
"The Torrens system of land registration and conveyancing as applied in Malaya by the National Land Code, has as one of its principle objects to give certainty to land and registrable interests in land. Since the instant case is concerned with Title to the land itself their Lordships will confine their remarks to this, though similar principles apply to other registrable interests. By s.340 the title of any person to land of which he is registered as proprietor is indefeasible except in cases of fraud, forgery or illegality and even in such cases a bond fide purchase for value can safely deal with the registered proprietor and will acquire from him on indefensible registered title."
In "Prasad v Mohammed" (2005) FJHC 124; HBC 0272J.1999L (03.06.2005) Justice Gates (as he was then) succinctly stated the principles in relation to fraud and indefeasibility of title as follows;
[13] In Fiji under the Torrens system of land registration, the register is everything: Subramani&Ano v DharamSheela& 3 Others [1982] 28 Fiji LR 82. Except in the case of fraud the title to land is that as registered with the Register 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 judgement of the Board said:
"It is to be noticed that each of these sections except the case of fraud, setion 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 of 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 sown on the part of the plaintiff as registered proprietor or of his agents Wicks v. Bennet [1921] HCA 57; [1921] 30 CLR 80; Butler v Fairclough [1917] HCA 9; [1917] 23 CLR 78 at p.97
(Emphasis Added)
In the case of SHAH –v- FIFTA (2004) FJHC 299, HBC 03292J, 2003S (23rd June 2004) the Court took into consideration Sections 38, 39 and 40 of the Land Transfer Act Cap 131. Under Section 38 of the Lands Transfer Act Cap 131 it states that;
"No instrument of title registered under the provisions of this Act shall be impeached or defeasible by reason of or an account of any informality or in any application or document or in any proceedings previous to the registration of the instrument of title".
Pathik J in this case; SHAH –v- FIFITA (supra) emphasised on section 40 of the Land Transfer Act Cap 131 as follows:
"Except in the case of fraud, no person contracting or dealing with or taking or proposing to take a transfer from the proprietor of any estate or interest in land subject to the provisions of this Act shall be required or in any manner concerned to inquire or ascertain the circumstances in or the consideration for which such proprietor or in any previous proprietor of such estate or interest is or was registered, or to see to the application of the purchase money or any part thereof, or shall be affected by notice, direct or constructive, of any trust or unregistered interest, any rules of law or equity to the contrary notwithstanding, and the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud".
Fraud for the purpose of the Land Transfer Act has been defined by the Privy Council in Assets Company Ltd v Mere Roihi [1905] UKLawRpAC 11; [1905] AC 176 at p.210 where it was said:
".... by fraud in these Acts is meant actual fraud, i.e. dishonesty of some sort, not what is called constructive or equitable fraud – an unfortunate expression and one very apt to mislead, but often used, for want of a better term, to denote transactions having consequences in equity similar to those which flow from fraud. Further, it appears to their Lordships that the fraud which must be proved in order to invalidate the title of a registered purchaser for value, whether he buys from a prior registered owner or from a person claiming under a title certified under the Native Lands Act, must be brought home to the person whose registered title is impeached or to his agents. Fraud by persons from whom he claims does not affect him unless knowledge of it is brought home to him or his agents. The mere fact that he might have found out fraud if he had been more vigilant, and had made further inquiries which he omitted to make, does not of itself prove fraud on his part. But if it be shown that his suspicious were aroused, and that he abstained from making inquiries for fear of learning the truth, the case is very different, and fraud may be properly ascribed to him. A person who presents for registration a document which is forged or has been fraudulently or improperly obtained is not guilty or fraud if he honestly believes it to be a genuine document which can be properly acted upon."
Fraud: Sufficiency of evidence;
In Sigatoka Builders Ltd v Pushpa Ram & Ano. (unreported) Lautoka High Court Civil Action No. HBC 182.01L, 22 April 2002 the Court held in relation to "Fraud: sufficiency of evidence";
"Though evidence of fraud and collusion is often difficult to obtain, the evidence here fails a good way short of a standard requiring the court's further investigation. In Darshan Singh v Puran Singh [1987] 33 Fiji LR 63 at p.67 it was said:
"There must, in our view, be some evidence in support of the allegation indicating the need for fuller investigation which would make Section 169 procedure unsatisfactory. In the present case the appellant merely asserted that he had paid the money for the purchase of the property. This was denied by both Prasin Kuar and the respondent. There was nothing whatsoever before the learned judge to suggest the existence of any evidence, documentary or oral, that might possibly assist the appellant in treating the case as falling within the scope of Section 169 of the Land Transfer Act and making an order for possession in favour of the respondent."
In that case it was also held that a bare allegation of fraud did not amount by itself to a complicated question of fact, making the summary procedure of Section 169 in appropriate see too Ram Devi v Satya Nand Sharma & Anor.
[1985] 31 Fiji LR 130 at p.135A. A threshold of evidence must be reached by the Defendant before the Plaintiff can be denied his summary remedy. In Wallingford v Mutual Society [1880] 5 AC 685 at p. 697 Lord Selbourne LC said:
"With regards to fraud, if there be any principle which is perfectly well settled, it is that general allegations, however strong may be the words in which they are stated, are insufficient even to amount to an averment of fraud of which any Court ought to take notice. And here I find nothing but perfectly general and vague allegations of fraud. No single material fact is condescended upon, in a manner which would enable any Court to understand what it was that was alleged to be fraudulent."
(Emphasis Added)
It is clear from the above mentioned judicial decisions that a bare allegation of fraud does not amount by itself to a complicated question of fact, making the summary procedure of Section 169 inappropriate.
There should be some evidence in support of the allegation of fraud indicating the need for full investigation which would make Section 169 procedure unsatisfactory.
Returning back to the instant case, after consideration the contents of the Defendant's affidavit in opposition, I find that there is no basis to impute fraud on the Plaintiff. There is nothing in the affidavit to establish any resemblance of fraud. There is lack of evidence to make the Plaintiff even a party to the alleged fraud. A bare allegation of fraud is not sufficient to defeat the Plaintiff's Indefeasibility of Title".
At this point I cannot resist in saying that the proposition advanced by the Defendant is a far cry from the provisions of Land Transfer Act and it flies on the face of the rule of law enunciated in the aforesaid Judicial decisions.
In the result, I am constrained to answer the first question posed at paragraph (04) affirmative.
(6) Now I proceed to address the second and third questions posed at paragraph (4) four.
Reference is made to paragraphs (31) and (49) of the Affidavit in Opposition filed by the Defendant.
(31) After the new lease was issued to the Plaintiff my father then had made an arrangement with the Plaintiff that I will continue to cultivate and farm my seven (7) acres of the land and that the aforesaid arrangement will continue forever. The Plaintiff had agreed to this.
(49) The Plaintiff had agreed with my father to allow and continue with the arrangement that was done by my late father to continue to cultivate the seven acres of land. Had the Plaintiff not agreed to that arrangement, my father would had purchased some other land and relocated us.
After an in-depth analysis of the totality of the affidavit evidence in this case, I now summarise my understanding of the salient facts as follows:-
➢ The land in question in this case is Native Land within the meaning of Native Lands Trust Act.
➢ The Land in question is leased by the Native Land Trust Board to the Plaintiff on 1st of July 2003 for 30 years at yearly rental of $400.00.
➢ The Plaintiff and the Defendant are siblings.
➢ It is alleged that the Plaintiff had granted verbal consent to the Defendant to occupy and cultivate 07 acres of the land in question.
➢ The consent of the Native Land Trust Board to the alleged verbal consent was neither "first had and obtained" nor has it ever been obtained.
The proposition advanced by the Defendant requires some examination of the Native Land Trust Act.
I should quote Section 12 of the Native Land Trust Act which provides;
"12.-(1)Except as may be otherwise provided by regulations made hereunder, it shall not be lawful for any lessee under this Act to alienate or deal with the land comprised in his lease or any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever without the consent of the Board as lessor or head lessor first had and obtained. The granting or withholding of consent shall be in the absolute discretion of the Board, and any sale, transfer, sublease or other unlawful alienation or dealing effected without such consent shall be null and void:
Provided that nothing in this section shall make it unlawful for the lessee of a residential or commercial lease granted before 29 September 1948 to mortgage such lease."
Reading as best, I can between the sections of Native Land Trust Act, it seems to me, that Section 12 prohibits any dealing in land which is comprised in Native Lease without the consent of the Board as lessor.
Moreover, unlawful occupation of Native Land is an offence under Section 27 of the Native Land Trust Act.
On a strict reading of section 12 and 27, it is perfectly clear that the two sections are clearly designed for the control and protection of the Native Land.
I do not think I need to read anymore!
The present case falls within the rule of law enunciated in the Privy Council decision of Chalmers v Pardoe, (1963) 3 A.E.R 552. In that case, Mr.Pardoe was the holder of a lease of Native Land. The Native land is subject to Section 12 (1) of the Native Land Trust Act which is in the exact same terms as Section 13 of the Crown Lands Act.
The leading case upon the interpretation of Section 12 of the Native Land Trust Act is Chalmers v Pardoe(supra).As earlier mentioned, Mr.Pardoe was the holder of a lease of Native Land. By a "friendly arrangement" with Mr Pardoe, Mr Chalmers built a house on a part of the land and entered into possession. The consent of the Native Land Trust Board was never obtained. The rule of law enunciated by the Privy Council was that the transaction amounted to an agreement for a lease or sublease but even regarding it as a licence to occupy coupled with possession and that a "dealing" with the land took place.
Returning to the present case, on the question as to whether the "alleged verbal consent" granted to the Defendant by the Plaintiff to occupy and cultivate 07 acres of the Native Land, amounted to a "dealing" within the meaning of Section 12 of the Native Lands Trust Act, if any authority is required, I need only refer to the rule of law enunciated by the Privy Council in Chalmers v Pardoe (supra) where a somewhat similar situation as this was considered.
As to whether the "friendly arrangement" amounted to a "dealing" within the meaning of s.12 of the Ordinance, Sir Terence Donovan, in delivering the speech of the Privy Council in Chalmers v Pardoe (supra), explained it as follows:
"Repeating this term, but without necessarily adopting it, the Court of Appeal held, as their lordships have already indicated, that the least effect which could be given to the "friendly arrangement" was that of a licence to occupy coupled with possession. Their lordships think the matter might have been put higher. "I gave him the land for nothing" said Mr Pardoe. Again, "He could get anything – a sublease or a surrender, which was perfectly correct..." And so on. In their lordships view an agreement for a lease or sublease in Mr Chalmers' favour could reasonably be inferred from Pardoe'sevidence.
Even treating the matter simply as one where a licence to occupy coupled with possession was given, all for the purpose, as Mr Chalmers and Mr Pardoe well knew, of erecting a dwelling-house and necessary buildings, it seems to their lordships that, when this purpose was carried into effect, a "dealing" with the land took place. On this point their lordships are in accord with the Court of Appeal: and since the prior consent of the Board was not obtained, it follows that under the terms of s.12 of the ordinance, cap 104, this dealing with the land was unlawful. It is true that in Harman Singh and Backshish Singh v Bawa Singh [ 1958-59] FLR 31, the Court of Appeal said that it would be an absurdity to say that a mere agreement to deal with land would contravene s.12, for there must necessarily be some prior arrangement in all such cases. Otherwise there would be nothing for which to seek the Board's consent. In the present case, however, there was not merely agreement, but, on one side, full performance: and the Board found itself with six more buildings on the land without having the opportunity of considering beforehand whether this was desirable. It would seem to their lordships that this is one of the things that s.12 was designed to prevent. True it is that, confronted with the new buildings, the Board as lessor extracted additional rent from Mr Pardoe: but whatever effect this might have on the remedies the Board would otherwise have against Mr Pardoe under the lease, it cannot make lawful that which the ordinance declares to be unlawful."
Returning to the present case, on the strength of the authority in the above case,, it is clear beyond question that the alleged "verbal consent" granted to the Defendant by the Plaintiff, to occupy and cultivate seven (7) acres of the subject land amounted to a "dealing on land" within the meaning of Section 12 of the Native Lands Trust Act.
In the context of the present case, I am mindful of the rule of law enunciated in the following decisions;
Henry J.P. in PhaladvSukh Raj (1978) 24 FLR 170 said;
"The cases already cited show that the Courts have held that the mere making of a contract is not necessarily prohibited by section 12. It is the effect of the contract which must be examined to see whether there has been a breach of section 12. The question then is whether, upon the true construction of the said agreement the subsequent acts of appellant, done in pursuance of the agreement, "alienate or deal with the land, whether by sale transfer or sublease or in any other manner whatsoever" without the prior consent of the Board had or obtained. The use of the term "in any other manner whatsoever" gives a wide meaning to the prohibited acts. For myself I have no doubt but that the true construction of the said agreement and the said agreement and the substantial implementation of such an agreement for sale and purchase, under which possession is completely parted with to the purchaser and immediate mutual rights and liabilities are created in respect of such exclusive possession, is a breach of section 12 if done before the consent is obtained."
The words "alienate" and "deal with" as elaborated in section 12, are absolute and do not permit conditional acts in contravention. If before consent, acts are done pending the granting of consent, which come within the prohibited transactions, then the section has been breached and later consent cannot make lawful that which was earlier unlawful and null and void. This does not cut across the cases already cited which deal with the formation of the contract as contrasted with an immediately operative agreement and substantive acts in performance thereof."
Gould V.P in Jai Kissun Singh v Sumintra, 16 FLR p 165 said;
". . . .it is not necessary that the agreement between the parties should have progressed to a stage at which formal documents of lease or assignment has been executed before the transaction became a dealing requiring prior consent. That, having regard to the objects of the section, is only common sense. Otherwise, a purchaser under agreement could remain indefinitely in possession and control, exercising the rights of full ownership and even protecting himself by caveat. If an agreement is signed and held inoperative and inchoate while the consent is being applied for I fully agree that it is not rendered illegal and void by section 12. Where then, is the line to be drawn? I think on a strict reading of section 12 in the light of its object, an agreement for sale of native land would become void under the section as soon as it was implemented in any way touching the land, without the consent having been at least applied for ... ... ..."
(Emphasis Added)
In Chalmers v Pardoe [1963] 1 WLR 677 said;
"But even treating the matter simply as one where a licence to occupy, coupled with possession was given, all for the purpose, as Chalmers and Pardoe well knew, of erecting a dwelling house and accessory buildings it seems to their Lordships that when this purpose was carried into effect a "dealing" with the land took place."
The affidavits contain no statement that the Native Land Trust Board had ever consented either, expressly or by implication for alienation or any dealing effected in respect of subject land.
Thus the alleged verbal consent granted to the Defendant by the Plaintiff [lessee of the Native Land] to occupy and cultivate 07 acres of the Native Land is illegal since the provisions of Section 12 of the Native Land Trust Act has been breached. As a result the inescapable conclusion is that the alleged transaction whereby the Plaintiffalienated or dealt with the property by way of alleged verbal consent granted to the Defendant by the Plaintiff [lessee of the Native Land] to occupy and cultivate 07 acres of the Native Land was unlawful and null and void ab initio.
In the context of the present case, I must confess that I am much inclined to lean in favour of the more liberal judicial thinking reflected in the following judicial decisions.
In MISTRY AMAR SINGH v KULUBYA 1963 3 AER p.499, a Privy Council case, it was held that a registered owner of the land was entitled to recover possession because his right to possession did not depend on the illegal agreements in that case but rested in his registered ownership and as the person in possession could not rely on the agreements because of their illegality he could not justify his remaining in possession. That case "concerned an illegal lease of 'Mailo' land by an African to a non-African which was prohibited by a Uganda Statute except with the written consent of the Governor. No consent was obtained to the lease. After the defendant had been in possession for several years the plaintiff gave notice to quit and ultimately sued him for recovery of the lands. He succeeded.
Also in RAM KALI f/n Sita Ram and SATEN f/n Maharaj (Action No. 93/77) KERMODE J. expressed a similar view:-
"It is not necessary to determine whether there was an alleged sale as the defendant contends or a tenancy as the plaintiff alleges. Either transaction was illegal without the consent of the Director of Lands. ... While the plaintiff did disclose the illegal tenancy her claim for possession is based on the independent and untainted grounds of her registered ownership and she does not have to have recourse to the illegal tenancy to establish her case."
In Khan v Prasad [1996] FJHC 85; HBC 0480J, 96s (23 December 1996), Mr Justice Pathik expressed the view that where the Director of Lands consent was not obtained on the defendant's occupation of a crown protected lease, the defendant cannot justify the remaining in possession.
Therefore, the defendant's stance would, of course, fly in the face of rule of law enunciated in the aforementioned judicial decisions.
Given the above, I am constrained to answer the second and third questions earlier posed at paragraph 04 in the affirmative.
Suffice it to say that the Defendant's stance will not stand as, Section 59 (d) of the indemnity, Guarantee and bailment Act (Cap 232) states that no action shall be brought upon any contract or sale of lands or any interest in them unless the agreement upon which such action is brought or a memorandum thereof is in writing. Quite plainly this provision is designed to prevent fraud.
No such writing is in evidence in the present case. There is no shred of evidence tending to establish such writing. Accordingly, the alleged verbal consent granted to the Defendant by the Plaintiff [lessee of the Native Land] to occupy and cultivate 07 acres of the Native Land is invalid and unenforceable.
For the sake of completeness, section 59 (d) of the act is reproduced below.
59. No action shall be brought-
(a) ...........................
(b) ...........................
(c) ...........................
(d) upon any contract or sale of lands,tenements or hereditaments or any interest in or concerning them; or
(e) .......................................
Unless the agreement upon which such action is to be brought or some memorandum or note thereof is in writing and signed by the party to be charged there or some other person thereunto by him lawfully authorised.
(Emphasis added)
(7) Now I proceed to address the fourth (04) question posed at paragraph (04) four.
This question requires some examination of the law regarding "Promissory or equitable estoppels."
Spry in his "Principles of Equitable Remedies" 4th Edition 1990 page 179 sets out the basic principles of equitable proprietary estoppel as follows:
➢ The Plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendants or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship.
➢ The Plaintiff has induced the defendant to adopt that assumption or expectation.
➢ The Plaintiff acts or abstains from acting in reliance on the assumption or expectation.
➢ The defendant knew or intended him to do so.
➢ The Plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled.
➢ The defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise.
Lord Kingsdown in the case of Ramsden v Dyson [1866] UKLawRpHL 7; (1865) L.R. 1 H.L. 129 said at p. 140;
"If a man under a verbal agreement with a landlord for a certain interest in land or what amounts to the same thing under the expectation created or encouraged by the landlord, that he shall have a certain interest, takes possession of such land with the consent of the landlord, and upon the faith of such promise or expectation with the knowledge of the landlord and without any objections by him, lays out money upon the land, a Court of Equity will compel the landlord to give effect to such promise or expectation."
Also at p. 140 Lord Cransworth L.C. said:
"If a stranger begins to build on any land supposing it to be his own and I perceiving his mistake, abstain setting him right, and leave him to persevere in his error, a court of equity will not allow me afterwards to assert my title to the land in which he had expended money on the supposition that the land was his own."
Promissory or equitable estoppel is described in Halsburys Laws of England, Fourth Edition, Volume 16, at paragraph 1514:
"When one party has, by his words or conduct, made to the other a clear and unequivocal promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to their previous legal relations as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced."
Snell's Equity (13th Ed), at para 39 – 12 states that:
"Proprietary estoppel is one of the qualification to the general rule that a person who spends money or improving the property of another has no claim to reimbursement or to any proprietary interest in the property".
Proprietary estoppel, unlike promissory estoppel, is permanent in its effect. It is capable even of conferring a right of action. For it to apply there must exist essential elements or conditions. The Court, in Denny v. Jensen [1977] NZLR 635 identified four conditions namely, as p.638.
"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".
Megarry J in In re Vendervell's Trust (No. 2) [1974] CH 269 describes the essential elements this way, at p. 301,
"... the person to be estopped (I shall call him O, to represent the owner of the property in question), must know not merely that the person doing the acts (which I shall call) was incurring the expenditure in the mistaken belief that A already owned or would obtain a sufficient interest in the property to justify the expenditure, but also that he, O, was entitled to object to the expenditure. Knowing this, O nevertheless stood by without enlightening A. The equity is based on unconscionable behaviour by O; it must be shown by strong and cogent evidence that he knew of A's mistake, and nevertheless dishonestly remained wilfully passive in order to profit by the mistake".
In Denny v. Jensen [1977] 1 NZLR 635 at 639, Justice White very aptly summarised the doctrine as follows:-
"In Snell's Principles of Equity (27 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 that property. In Plimmer v Willington 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 decided in what way the equity can be satisfied" (9 App Cas 699), 714; NZPCC 250, 260). In Chalmers v Pardoe [1963] 1 WLR 677; [1963] 3 All ER 552 (PC) a person expending money was held entitiled to a charge on the same principle. The principle was again applied by the Court of Appeal in Inwards v Baker [1965]2 QB 29; [1965] EWCA Civ 4; [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 Salon LJJ agreed, said that all that was necessary:
"... is that the licencee 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).
(Emphasis Added)
Hon. Mr Justice Deepthi Amaratunga observed in VishwaNand v Rajendra Kumar (Civil Action HBC 271 of 2012) that;
"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."
(Emphasis Added)
Hon. Madam Justice AnjalaWati in Wilfred Thomas Peter v HiraLal and Farasiko (Labasa HBC 40 of 2009) held that;
"I must analyse whether the four conditions have been met for the defence of proprietary estoppel to apply. The conditions are:
i. An expenditure
ii. A mistaken belief
iii. Conscious silence on the part of the owner of the land
iv. No bar to the equity
The alleged verbal consent granted to the Defendant by the Plaintiff [lessee of the Native Land] to occupy and cultivate 07 acres of the Native Land is implicitly prohibited by Section 12 of the Native Land Trust Act since it lacked the consent of the Native Land Trust Board.
The doctrine of estoppel cannot be invoked to render valid a transaction which the legislature has enacted to be invalid. [Chand v Prakash, 2011, FJHC 640, HB169. 2010]
Gates J (as then was) considered somewhat a similar situation in "Indar Prasad and BidyaWati v Pusup Chand" (2001) 1 FLR 164 and said;
"Section 13 of the State Lands Act would appear to be a complete bar to any equitable estoppel arising in the Defendant's favour."
"Estoppel against a statute" is discussed as follows in Halsburys Laws of England, 4th Edition, Volume 16, at paragraph 1515,
"The doctrine of estoppel cannot be invoked to render valid a transaction which the legislature has, on grounds of general public policy, enacted is to be invalid, or to give the court a jurisdiction which is denied to it by statute, or to oust the court's statutory jurisdiction under an enactment which precludes the parties contracting out of its provisions. Where a statute, enacted for the benefit of a section of the public, imposes a duty of a positive kind, the person charged with the performance of the duty cannot be estopped be prevented from exercising his statutory powers. A petitioner in a divorce suit cannot obtain relief simply because the respondent is estopped from denying the charges, as the court has a statutory duty to inquire into the truth of a petition.
In Chalmers v Paradoe (1963)1W.L.R.687 the court held;
"The friendly arrangement entered into between the respondent and the appellant amounted to granting the appellant permission to treat a certain portion of the land comprised in the lease as if the appellant were in fact the lessee. Under this arrangement the respondent gave the appellant possession of part of the land. He granted to the appellant permission to enjoy exclusive occupation of that portion of the land, and to erect such buildings thereon as he wished. Such an arrangement could we think be considered an alienation, as was argued in Kuppan v Unni. Whether or not it was an alienation it can, we think, hardly be contended that it did not amount to a dealing in land with the meaning of section 12. It is true that the 'friendly arrangement' did not amount to a formal sublease of a portion of the land or to a formal transfer of the lessee's interest in part of the land comprised in the lease. The least possible legal effect which in our opinion could be given to this arrangement would be to describe it as a licence to occupy coupled with possession, granted by the lessee to the appellant. In our opinion, the granting of such a licence and possession constitutes a dealing with the land so as to come within the provisions of section 12, Ca. 104. The consent of the Native Land Trust Board was admittedly not obtained prior to this dealing, which thus becomes unlawful and acquires all the attributes of illegality. An equitable charge cannot be brought into being by an unlawful transaction and the appellant's claim to such a charge must therefore fail."
In Re CM Group (Pvt)Ltd's Caveat [1986] 1 Qd R 381, it was held that property did not pass in equity until the required municipal council approval was obtained. In Brown v Heffer (1967) 110 CLR 344, an interest in equity did not pass because the required consent of the Minister had not been obtained.
On the strength of the authority in the above cases, I think it is quite possible to say that the mandatory requirement of Section 12 of the Native Land Trust Act and the legal consequences that flow from non-compliance defeat the Defendant's claim for an equitable charge or lien over the land. The defence stance in relation to equitable charge would, of course, fly in the face of rule of law enunciated in the above judicial decisions. Therefore, I am constrained to answer the fourth question earlierposed at paragraph 04 negatively.
(8) Now I proceed to address the fifth question posed at paragraph 4.
The Defendant contends that there is an equity or proprietary estoppels arising out of his long term occupation of the subject land.
Reference is made to paragraph (47) of the Affidavit in Opposition filed by the Defendant.
(47) I had lived on the said land since 1998 and I am still living on the said lease.
On the question of whether the Defendant's occupation of the subject land for whatever length of time, a circumstance giving rising to any form of proprietary estoppels or equity, if any authority is required, I need only refer to the sentiments of Fatiaki J in Wati v Raji (1996) FJHC 105; The Hon. Judge held;
"Turning finally to the question of 'proprietary estoppel'. Suffice it to say that the mere occupation of a piece of land on a yearly tenancy for whatever length of time, is not a circumstance capable of giving rise to any form of 'estoppel', proprietary or otherwise, nor in my view is any 'equity' created thereby which the court would protect.
(Emphasis added)
In the result, I am constraint to answer the fifth question posed at paragraph (4) negatively.
(9) To sum up, it is clear beyond question that the Defendant has failed to show cause to remain in possession as required under section 172 of the Land Transfer Act.
At this point, I cannot resist in reitering the judicial thinking reflected in following decisions;
In the case of Morris Hedstrom Limited v Liaquat Ali, CA No, 153/87, the Supreme Court held,
"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 a right must be adduced." (emphasis is mine)
In Shankar v Ram, (2012) FJHC 823; HBC 54.2010, the Court held;
What the Defendant needs to satisfy is not a fully – fledged right recognized in law, to remain possession but some tangible evidence establishing a right or some evidence supporting an arguable case for such a right to remain in possession. So, even in a case where the Defendant is unable to establish a complete right to possession, if he can satisfy an arguable case for a right still he would be successful in this action for eviction, to remain in possession.
Being guided by those words, I think it is right in this case to say that the Defendant has failed to adduce some tangible evidence establishing a right or supporting an arguable case for such a right.
Given the above, I certainly agree with the sentiments which are expressed inferentially in the Plaintiff's submissions.
(10) At the hearing in Court, Counsel for the Plaintiff, with breath taking disingenuousness, moved for costs on an indemnity basis. The Plaintiff seeks indemnity costs on the following grounds. Reference is made to paragraph (7) and (8) of the Plaintiff's Affidavit in Support of the Originating Summons.
(7) THAT the Defendant and his families are trespasser, nuisance and a disturbance to me.
(8) THAT the Defendant and his families are harassing me and my families.
At this point I cannot resist in saying that I remain utterly unimpressed by the grounds adduced by the plaintiff for indemnity costs.
Leave that all aside, the submissions require some examination of the law regarding "indemnity costs".
Order 62, rule 37 of the High Court Rules empower courts to award indemnity costs at its discretion.
For the sake of completeness, Order 62, rule 37 is reproduced below.
Amount of Indemnity costs (O.62, r.37)
37.- (1) The amount of costs to be allowed shall (subject to rule 18 and to any order of the Court) be in the discretion of the taxing officer.
The principles by which Courts are guided when considering whether or not to award indemnity costs are discussed by Hon. Madam Justice Scutt in "Prasad v Divisional Engineer Northern (No. 02)" (2008) FJHC 234.
As to the "General Principles", Hon. Madam Justice Scutt said this;
➢ "A court has 'absolute and unfettered' discretion vis-à-vis the award of costs but discretion 'must be exercised judicially'. Trade Practices Commission v. Nicholas Enterprises (1979) 28 ALR 201, at 207
➢ The question is always 'whether the facts and circumstances of the case in question warrant making an order for payment of costs other than by reference to party and party'; Colgate-Palmolive Company v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225, at 234, per Sheppard, J.
➢ A party against whom indemnity costs are sought 'is entitled to notice of the order sought': Huntsman Chemical Company Australia Limited v. International Cools Australia Ltd (1995) NSWLR 242
➢ That such notice is required is 'a principle of elementary justice' applying to both civil and criminal cases: SayedMukhtar Shah v. Elizabeth Rice &Ors (Crim Appeal No. AAU0007 of 1997S, High Court Crim Action No. HAA002 of 1997, 12 November 1999), at 5, per Sir MotiTikaram, P.Casey and Barker, JJA
➢ '. . . neither considerations of hardship to the successful party nor the over-optimism of an unsuccessful opponent would by themselves justify an award beyond party and party costs. But additional costs may be called for if there has been reprehensible conduct by the party liable': State v. The Police Service Commission; Ex parte BeniaminoNaviveli (Judicial Review 29/94; CA Appeal No. 52/95, 19 August 1996), at 6
➢ Usually, party/party costs are awarded, with indemnity costs awarded only 'where there are exceptional reasons for doing so': Colgate-Palmolive Co v. Cussons Pty Ltd at 232-34; Bowen Jones v. Bowen Jones [1986] 3 All ER 163; ReMalley SM; Ex parte Gardner [2001] WASCA 83; SDS Corporation Ltd v. Pasonnay Pty Ltd &Anor [2004] WASC 26 (S2) (23 July 2004), at 16, per Roberts-Smith, J.
➢ Costs are generally ordered on a party/party basis, but solicitor/client costs can be awarded where 'there is some special or unusual feature of the case to justify' a court's 'exercising its discretion in that way': Preston v Preston [1982] 1 All ER 41, at 58
➢ Indemnity costs can be ordered as and when the justice of the case so requires: Lee v. Mavaddat [2005] WASC 68 (25 April 2005), per Roberts-Smith, J.
➢ For indemnity costs to be awarded there must be 'some form of delinquency in the conduct of the proceedings': Harrison v. Schipp [2001] NSWCA 13, at paras [1], [153]
➢ Circumstances in which indemnity costs are ordered must be such as to 'take a case out of the "ordinary" or "usual" category. . . ": MGICA 91992) Ltd v. Kenny & Good Pty Ltd (No.2) [1996] FCA 862; (1996) 140 ALR 707, at 711, per Lindgren J.
➢ '. . . it has been suggested that the order of costs on a solicitor and client basis should be reserved to a case where the conduct of a party or its representatives is so unsatisfactory as to call out for a special order. Thus, if it represents an abuse of process of the Court the conduct may attract such an order': Dillon and Ors v. Baltic Shipping Co ('The Mikhail Lermontov') (1991) 2 Lloyds Rep 155, at 176, per Kirby, P.
➢ Solicitor/client or indemnity costs can be considered appropriately 'whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known . . . he had no chance of success': Fountain Selected Meats (Sales) Pty Ltd v. International Produce Merchants Ltd &Ors (1998) 81 ALR 397, at 401, per Woodward, J."
As I see it, the Defendant has done no more than to exercise his legal right to contest the Plaintiffs Originating Summons. As for me, the Defendant is not guilty of any conduct deserving of condemnation as disgraceful or as an abuse of the process of the Court and ought not to be penalised by having to pay indemnity costs.
Finally, I desire to emphasise that there is no iota of evidence to establish that the Defendant had an ulterior motive, or is in wilful disregard of known facts or the established law. Thus, it will be ridiculous for me to penalise the Defendant.
In the context of the present case, I cannot help but recall the rule of law enunciated in the following decisions;
In RanjayShandill v Public Service Commission [Civil Jurisdiction Judicial Review No:- 004 of 1996] Pathik J held;
"[A party] cannot be penalised [for] exercising its right to dispute matters but in very special cases where a party is found to have behaved disgracefully or where such behaviour is deserving of moral condemnation, then indemnity costs may be awarded as between the losing and winning parties."
In Quancorp PVT Ltd &0020Anor v. MacDonald &Ors [1999] WASC 101, Wheeler J held;
".... 'hopeless' too readily so as to support an award of indemnity costs, bearing in mind that a party 'should not be discouraged, by the prospect of an unusual costs order, from persisting in an action where its success is not certain' for 'uncertainty is' inherent in many areas of law' and the law changes' with changing circumstances"
For the reasons which I have endeavoured to explain, I have no doubt and I am clearly of the opinion that an award of indemnity costs is not warranted. I cannot see any other just way to finish the matter than to follow the law.
(E) CONCLUSION
Having had the benefit of written submissions for which I am most grateful and after having perused the affidavits and the pleadings, doing the best that I can on the material that is available to me, I have no doubt and I am clearly of the opinion that the Defendant has failed to show cause to remain in possession as required under Section 172 of the Land Transfer Act.
In the circumstances, it is my considered view that the Plaintiff is entitled to an order as prayed in Summons for immediate vacant possession.
(F) FINAL ORDERS
(1) I order that Defendant to deliver immediate vacant possession of the land described in the Originating Summons, dated 23rd December 2014.
(2) The Plaintiff's application for indemnity costs is refused.
(3) The Defendant is ordered to pay costs of $1,000.00 (summarily assessed) to the Plaintiff which is to be paid within 14 days from the date hereof.
.......................................
Jude Nanayakkara
Acting Master of the High Court
At Lautoka
11 September 2015
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