Turuva v Qauqau [2015] FJHC 853; HBC115.2015 (5 November 2015)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

CIVIL JURISDICTION

CIVIL ACTION NO. HBC 115 of 2015

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

BETWEEN:

SEFANAIA TURUVA of Waiyavi, Lautoka.
PLAINTIFF

AND:

NIUMAIA QAUQAU of Naviyago, Lautoka.
DEFENDANT

The Plaintiff - In person
The Defendant - In person

Date of Hearing: - 13th October 2015
Date of Ruling : - 05th November 2015

RULING

(A) INTRODUCTION

(1) The matter before me stems from the Plaintiff's Originating Summons dated 20th July 2015, made Pursuant to Section 169 of the Land Transfer Act, Cap 131 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:- 4/7/40397" known as Drasa subdivision Lot 2 in the Tikina of Ba and having an area of 4.3515 ha.

(3) The application for eviction is supported by an affidavit sworn by the Plaintiff on 15th July 2015.

(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 Summons. They made oral submissions to Court.

(B) THE FACTUAL BACKGROUND

(1) What are the circumstances that give rise to the present application?

(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 deposes inter alia (so far as relevant);

Para 2. THAT I am the registered proprietor of Native Lease under Instrument of Tenancy TLTB no 4/7/40397 known as Drasa (part of) Subdivision Lot 2 in the tikina of Vitogo in the province of Ba and having an area approximately 4.3515 ha situated at Naviyago, Lautoka (hereinafter called "the said property"). A certified true copy of the said Instrument of Tenancy is annexed herein and marked as Annexure "ST1".

3. THAT the Defendant and his family are unlawfully occupying.

the said property at Naviyago, Lautoka.

4. THAT the ILTB has issued a letter of request to vacate the property to the Defendant dated 27.5.2015. A certified true copy of the said letter is attached herein and marked as Annexure "ST2".

5. THAT to date the Defendant and his family are still occupying my said property and are refusing to vacate the same.

(4) The Defendant for his part in seeking to show cause against the Summons, filed an Affidavit in Opposition, which is substantially as follows (so far as relevant);

Para 2. THAT I have been residing at the subject land for the last 5 years cultivating the land with my family. The landowners permitted me to stay on the land as the caretaker.

3. THAT the subject land is under an Instrument of Tenancy awarded to one Taivesi Saukuru Turagakula and Kalesi Tiana Riu Saukuru. Annexed and marked as "NQ1" is a copy of the said instrument.

4. THAT Mr Taivesi Saukuru is deceased however Ms Kalesi Saukuru the surviving title holder is unaware of the Instrument of Tenancy under the Plaintiff's name as in no occasion had she given her consent to allow for the transfers. Annexed and marked as "NQ2" is a copy of the death certificate of Mr Taivesi Saukuru.

6. SUBSEQUENTLY she with the other landowners wrote a letter to iTLTB voicing their concerns about the illegal transaction that had taken place between the Plaintiff and TLTB. Annexed and marked as "NQ3" is a copy of the letter to ITLTB.

9. THAT I have been residing in this land for 5 years with my wife and four children. Our dwelling house is built on this land which I had maintained and developed.

(5) The Plaintiff filed an Affidavit in rebuttal deposing inter alia (so far as relevant);

Para 1. THAT I do agree that Instrument of Tenancy no. 7644 (TLTB No. 4/7/6195) was initially granted to Tavesi Saukuru Turagakula and Kalesi Tiana Riu Saukuru registered in 2011 by the Register of deeds. The Defendant was brought in to stay on the land simply as a caretaker.

2. HOWEVER the said Instrument of Tenancy under the relevant TLTB file reference has been re-entered by the Board on 31st July 2015 and the re-entry registered with the Registrar of Deeds on the 17th of January 2014. Attached is a copy of the letter from TLTB dated 7th September 2015 confirming the same and a copy of the application for register cancellation upon re-entry by the lessor re-entry no 44649 registered on 17 January 2014 by the Register of Deeds marked as Annexures "ST A" and "ST B" respectively. May it be noted that Ms Kalesi Saukuru's consent is not a requirement for the re-entry and there was no transfer as I have a new Instrument of Tenancy number.

3. THAT I then applied and was granted the Instrument of Tenancy in July 2014 after the re-entry and am the registered proprietor of Native Lease under Instrument of Tenancy TLTB n 4/7/40397 known as Drasa (part of) Subdivision Lot 2 in the tikina of Vitogo in the province of Ba and having an area of approximately 4.3515 ha situated at Naviyago, Lautoka (hereinafter called "the said property"). I refer to Annexure "ST1" of my 1st Affidavit which is a certified true copy of the said Instrument of Tenancy. I also attach the letter of reply dated 19 June 2014 of TLTB to my application to lease the land for agricultural purposes marked as fees of $1,150.00 and a further $500.00 for other administrative fees. I have also paid lease rental starting from the month of July 2014. I attach herein copies of receipts for some payments made marked as Annexure "ST D".

4. THAT I have been paying the monthly lease rentals and the Defendant and his family are unlawfully occupying the said property at Naviyago, Lautoka, despite the letter of request to vacate the property by the TLTB dated 27.5.2015. Please refer to Annexure "ST 2" of my 1st Affidavit.

5. THAT since July 2014 the Defendant has been residing illegally on my lease land hindering my efforts to fulfill my dream for the land in terms of what needs to be planted and how much I should receive from the land in return. The total amount received from the farm should help/assist in paying my dues to the BSP bank (financial loan) and other family commitment. I had done some clearing on the farm site to the end of the land but very little progress due to this court case.

6. THAT the Defendant has erected a religious worship center on the farm site which was meant for agricultural purposes only and not for any religious activities. The Defendants permanent residence is only a walking distance away from the current farming location where the parents reside.

(C) THE LAW

(1) Against this factual background, it is necessary to turn to the applicable law and Judicial thinking in relation to the principles governing the exercise of the discretion to make the Order the Plaintiff now seeks.

(2) Rather than refer in detail to the various authorities, I propose to set out, with only limited citations, what I take to be the principles of the play.

(3) 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]

(4) 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.'

(5) 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."

(6) 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.

(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 (2) of the Affidavit in Support of the application for vacant possession.

Para 2. THAT I am the registered proprietor of Native Lease under Instrument of Tenancy TLTB no 4/7/40397 known as Drasa (part of) Subdivision Lot 2 in the tikina of Vitogo in the province of Ba and having an area approximately 4.3515 ha situated at Naviyago, Lautoka (hereinafter called "the said property"). A certified true copy of the said Instrument of Tenancy is annexed herein and marked as Annexure "ST1".

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. 4/7/40397 (Annexure ST -1) the Plaintiff is the lessee/tenant of the subject land. The "Instrument of Tenancy" is registered with the "Registrar of Deeds" on 05th September 2014. Therefore, the Plaintiff holds a registered lease and could be characterized as the last registered proprietor.

Therefore, it is clear beyond question that the application for eviction is more specifically brought under Section 169 (a) of the Land Transfer Act. It is pertinent to note that the Plaintiff's "locus standi" or legal standing to bring this action is not disputed by the Defendant.

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 Muniappa1977, 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

LET ALL PARTIES concerned attend before a Master in Chambers at the High Court, Lautoka on the 20th day of August, 2015 at the hour of 8.30 o'clock in the hearing of an Application by the above-named Plaintiff FOR AN ORDER that the Defendant NIUMAIA QAUQAU of Naviyago, Lautoka do show cause as to why he should not give up immediate vacant possession to the Plaintiff of the Plaintiff's Native Lease under Instrument of Tenancy TLTB no 4/7/40397 known as Drasa (part of) Subdivision Lot 2 in the Tikina of Vitogo in the province of Ba and having an area of approximately 4.3515 ha on the grounds set forth in the Affidavit of SEFANAIA TURUVA duly sworn and filed herein AND that the costs of and incidental to this application to be paid by the Defendant to the Plaintiff.

This summons will be attended by the Plaintiff in Person.

DATED this 20th day of July, 2015.

(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 20th August 2015. According to the Affidavit of Service filed by the Plaintiff, the Originating Summons was served on the Defendant on 31st July 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 Vana Aerhart Raihman 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) After an in-depth analysis of the totality of the Affidavit evidence in this case, I now summaries my understanding of the salient facts as follows;

❖ The land in question in this case is "Native Land" within the meaning of "Native Land Trust Act".

❖ The Plaintiff is the last registered proprietor of the land in question.

❖ The land is initially leased by the Native Land Trust Board (landlord) to "Taivesu Saukuru Turagakula" and "Kalesi Tiana Riu Saukuru (Tenants) on 03rd October 2001 [Instrument of Tenancy No. 4/7/6195].

❖ The Defendant was initially let into possession of the property (as a caretaker) by the tenants and subsequently they have granted verbal consent to the Defendant to occupy and cultivate the property. This is "prima facie" illegal due to the absence of consent of the Native Land Trust Board.

❖ In July 2012, the landlord (NLTB) entered into the land and took possession thereof since the tenants were in arrears for the space of more than one month.

❖ The "Instrument of Tenancy" No. 4/7/6195 was re-entered by the Native Land Trust Board on 31st July 2015 and the re-entry was registered with the Registrar of Deeds.

❖ Thereafter, the land is leased by the Native Land Trust Board to the Plaintiff on 01.07.2014 [Instrument of Tenancy No. 4/7/40397).

❖ The Defendant has been in possession, occupation and cultivation of the land since 2001 and still enjoying the same right.

❖ An allegation of fraud has been made against the Plaintiff.

❖ There is no evidence whatsoever that the Plaintiff acquired his registered title to the land through fraud.

❖ The Defendant has been in possession, occupation and cultivation of the land well before the Plaintiff became interested in the lease.

(4) What is the Defendant's reason refusing to deliver vacant possession? To be more precise, the Defendant for his part in seeking to show cause against the Summons, adduced three (3) grounds in Opposition. They are;

Ground 01 Reference is made to paragraph (02) of the Defendant's Affidavit in Opposition.

Para 2. THAT I have been residing at the subject land for the last 5 years cultivating the land with my family. The landowners permitted me to stay on the land as the caretaker.

Ground 02 Reference is made to paragraph (04) and (06) of the Defendant's Affidavit in Opposition.

Para 4. THAT Mr Taivesi Saukuru is deceased however Ms Kalesi Saukuru the surviving title holder is unaware of the Instrument of Tenancy under the Plaintiff's name as in no occasion had she given her consent to allow for the transfers. Annexed and marked as "NQ2" is a copy of the death certificate of Mr Taivesi Saukuru.

Para 6. SUBSEQUENTLY she with the other landowners wrote a letter to iTLTB voicing their concerns about the illegal transaction that had taken place between the Plaintiff and TLTB. Annexed and marked as "NQ3" is a copy of the letter to ITLTB.

Ground 03 Reference is made to paragraph (09) of the Defendant's Affidavit in Opposition.

Para 9. THAT I have been residing in this land for 5 years with my wife and four children. Our dwelling house is built on this land which I had maintained and developed.

(5) In adverso, the Plaintiff forcefully submits;

I am once again reitering paragraphs (02) and (03) of the Plaintiff's Affidavit in Reply;

Para 2. HOWEVER the said Instrument of Tenancy under the relevant TLTB file reference has been re-entered by the Board on 31st July 2015 and the re-entry registered with the Registrar of Deeds on the 17th of January 2014. Attached is a copy of the letter from TLTB dated 7th September 2015 confirming the same and a copy of the application for register cancellation upon re-entry by the lessor re-entry no 44649 registered on 17 January 2014 by the Register of Deeds marked as Annexures "ST A" and "ST B" respectively. May it be noted that Ms Kalesi Saukuru's consent is not a requirement for the re-entry and there was no transfer as I have a new Instrument of Tenancy number.

3. THAT I then applied and was granted the Instrument of Tenancy in July 2014 after the re-entry and am the registered proprietor of Native Lease under Instrument of Tenancy TLTB n 4/7/40397 known as Drasa (part of) Subdivision Lot 2 in the tikina of Vitogo in the province of Ba and having an area of approximately 4.3515 ha situated at Naviyago, Lautoka (hereinafter called "the said property"). I refer to Annexure "ST1" of my 1st Affidavit which is a certified true copy of the said Instrument of Tenancy. I also attach the letter of reply dated 19 June 2014 of TLTB to my application to lease the land for agricultural purposes marked as fees of $1,150.00 and a further $500.00 for other administrative fees. I have also paid lease rental starting from the month of July 2014. I attach herein copies of receipts for some payments made marked as Annexure "ST D".

(6) 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? (This relates to second ground adduced by the Defendant).

Secondly, is the alleged verbal consent granted to the Defendant by the previous tenants [in Instrument of Tenancy No. 4/7/6195], to occupy and cultivate the subject land, "a dealing in land" within the meaning of Section 12 of the Native Land Trust Act? (This relates to first ground adduced by the Defendant).

Thirdly, whether the alleged verbal consent is in breach of Section 12 of the Native Land Trust Act? (This relates to first ground adduced by the Defendant).

Fourthly, is there any equitable estoppel or lien arising in the defendant's favour on the land in question in view of the money expended on the property. (This relates to 3rd ground adduced by the Defendant).

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? (This relates to third ground adduced by the Defendant).

(7) Now I proceed to address the first question posed at paragraph (6).

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 (04) and (06) of the Affidavit in Opposition filed by the Defendant.

The Defendant deposes;

Para 4. THAT Mr Taivesi Saukuru is deceased however Ms Kalesi Saukuru the surviving title holder is unaware of the Instrument of Tenancy under the Plaintiff's name as in no occasion had she given her consent to allow for the transfers. Annexed and marked as "NQ2" is a copy of the death certificate of Mr Taivesi Saukuru.

Para 6. SUBSEQUENTLY she with the other landowners wrote a letter to iTLTB voicing their concerns about the illegal transaction that had taken place between the Plaintiff and TLTB. Annexed and marked as "NQ3" is a copy of the letter to ITLTB.

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 "EngMee 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 Dharam Sheela & 3 Others [1982] 28 Fiji LR 82. Except in the case of fraud the title to land is that as registered with the 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 judgment of the Board said:

"It is to be noticed that each of these sections except the case of fraud, section 62 employing the words "except in case of fraud." And section 63 using the words "as against the person registered as proprietor of that land through fraud." The uncertain ambit of these expressions has been limited by judicial decision to actual fraud by the registered proprietor 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 of 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 (06) six in the affirmative. Therefore, the second ground fails.

(8) Now I proceed to address the second and third questions posed at paragraph (6) six.

Reference is made to paragraph (02) of the Affidavit in Opposition filed by the Defendant.

Para 2. THAT I have been residing at the subject land for the last 5 years cultivating the land with my family. The landowners permitted me to stay on the land as the caretaker.

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 previous tenant/lessees of the land to occupy and cultivate 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's evidence.

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 previous tenants/lessees of the Native Land, to occupy and cultivate 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 previous tenants/lessee of the Native Land to occupy and cultivate 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 previous tenants/lessees of the Native Land alienated or dealt with the property by way of alleged verbal consent granted to the Defendant by the previous tenants/lessees to occupy and cultivate 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 (06) in the affirmative. Therefore, the first ground fails.

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 previous tenants/lessees of the Native Land to occupy and cultivate 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)

(9) Now I proceed to address the fourth (04) question posed at paragraph (06) six.

Reference is made to paragraph (09) of the Defendant's Affidavit in Opposition.

Para 9. THAT I have been residing in this land for 5 years with my wife and four children. Our dwelling house is built on this land which I had maintained and developed.

(Emphasis Added)

This question requires some examination of the law regarding "Promissory or equitable estoppels."

The relevant principle is expounded in;

❖ "Spry" in his "Principles of Equitable Remedies" 04th Edition, (1990), p. 179.

❖ "Snell" in his "Principles of Equity" 27th Edition, p. 565

❖ "Spencer Bower & Turner" in "Estoppel by Representation" 3rd Edition, (1977) Chapter 12.

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 neednot 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 entitled 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 Anjala Wati 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 previous tenants/lessees of the Native Land to occupy and cultivate 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 no 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 in view of the money expended on the property. 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 earlier posed at paragraph (06) negatively. Therefore, the third ground fails.

(10) Now I proceed to address the fifth question posed at paragraph 6.

The Defendant contends that there is an equity or proprietary estoppels arising out of his long term occupation of the subject land.

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 (06) negatively. Therefore, the third ground fails.

(11) 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. I disallow the grounds adduced by the Defendant refusing to deliver vacant possession.

(E) CONCLUSION

Having had the benefit of oral 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 personally 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 20th July 2015

(2) 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
05th November 2015