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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
Civil Action No. HBC 81 of 2015
BETWEEN:
YANTESH of Wailoku, Tamavua, Suva, Farmer, ANIRUTH KUMAR and BOTH MATI both of Wailoku, Tamavua, Suva, Fiji, Landlords as Administrator/Administratrix in the Estate of Narayan.
PLAINTIFFS
AND :
KAMAL KISHORE CHAND of Lot 14, Savura Road, Wailoku, Tamavua, Tenant.
DEFENDANT
BEFORE : Master Vishwa Datt Sharma
COUNSELS : Mr. Raman Singh for the Plaintiff.
Mr. Sunil Sharma for the Defendant.
Date of Hearing : 08th December, 2015
Date of Ruling : 16th March, 2016
RULING
INTRODUCTION
Plaintiff’s Case
(i) That they are the registered proprietor of Certificate of Title No. 11249, being Lot 14 on deposit plan no. 2807 “Naganivatu” (part of) containing an area of 4 acres and 21 perches. A copy of the said Crown Lease is attached hereto and marked with letter “A” (hereinafter referred to as the said property).
(ii) That the Defendant has been occupying the part of the said property (hereinafter referred to as “the demised premises”) as a licensee.
(iii) That their solicitors issued a notice of eviction to the defendant on 29th day of January 2014. The notice was duly served on the Defendant by their bailiff.
(iv) That the Defendant has not vacated the property as to date and is occupying the property illegally.
(v) That the Defendant does not have any defence in this action and the defendant refuses or neglects to vacate despite the notice given to him.
(vi) That they pray to this Honourable Court that the Defendant be ordered to give vacant possession of the said property in terms of the Originating Summons filed herein.
Defendant’s Case
(i) That he is the Defendant in this matter.
(ii) That he would have to set out the background of the events, which incidentally gives rise to the Plaintiffs making such an application.
(iii) That the first named Plaintiff Yangtesh and Narayan (the deceased) are brothers and he is married to the deceased’s wife’s sister,Vidya Wati. The second and the third named Plaintiffs, the Administrator/Administratrix of the deceased’s Estate, are Narayan’s children.
(iv) That prior to his living at Lot 14, Savura Road, Wailoku, Tamavua, he had been living in Korociri, Nausori. The deceased, in or about 1995, approached his wife and him to relocate and live on the deceased’s land at Wailoku, Tamavua (“the said property”) as well as to build their house there.
(v) That the deceased, around that time, had indicated to both his wife and him that since his property was freehold property he was giving them an unfettered right to live on the said property and that he would allow them the right to subdivide the portion of the land that they were to live on.
(vi) That the above was done verbally and he had no documentary evidence to prove the same.
(vii) That due to this verbal representation and assurance by the deceased in 1995 his family and he moved onto the said property and built their home (with the materials that they already had).
(viii) That when they had initially built their house, it was a 2 (two) bedroom house which his son later on expanded to 3 (three) bedroom upon him getting married roughly 8 (eight) years ago.
(ix) That to further assist his family and himself, the deceased had acknowledged a letter to the Manager of Fiji Electricity Authority (FEA”) stating that he live on his property and requesting FEA to allow him to have his own power supply. Prior to 2002 the deceased was assisting him in getting electricity supply by extending a lead wire from his house to their house.
(x) That his family and him have always regarded the portion of land they are currently residing on as their own and have had no worries and/or issues with respect to their living on the property until he was served with an eviction notice.
(xi) That he further states that at all times he had the express authority of the deceased to reside on his property from 1995 without any threat of being evicted by him. I have been residing on the property for about 20 years now.
(xii) That furthermore the Plaintiffs especially the present Administrator and Administratrix of the deceased’s Estate had not threatened eviction since the passing away of the deceased on 24th April 2003. They had knowledge of my continued occupation and residency of the said property which the deceased had allowed his family and him the opportunity to reside on the portion of the land which they are living on. Annexed hereto and marked as exhibit “B” is a copy of the death certificate of the deceased.
(xiii) That he denies that he have been occupying the said property illegally and that he have no defence as to remaining on the said property. In effect he has a right to the possession of the land.
(xiv) That he believes that due to the express authority of the deceased, the acquiesce of all the Plaintiffs and residing on the said property for about 2 decades now are justified reasons for not vacating the said property. Furthermore he had incurred expenditure on the land he is occupying.
(xv) That the Defendant raised the Defence of Proprietary Estoppel.
(xvi) That he therefore, humbly oppose the Applicant’s application and seek that this Honourable Court dismiss their application with costs.
(Underline is mine for deliberation)
THE LAW
“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) lessor against a lessee or tenant where a legal notice to quit has been given or the term of the lease has expired.”
"... the summary procedure has been provided in the Land Transfer Act and, where the issues involved are straightforward, and particularly where there are no complicated issues of fact, a litigant is entitled to have his application decided in that way."
"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."
(Underline is mine for emphasis)
"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."
"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. There is accordingly nothing in section 172 which requires an automatic order for possession unless "cause" is immediately shown.
(emphasis added)
‘These sections and equivalent provisions of the Land (Transfer and Registration) Ordinance (Cap. 136-1955 Laws of Fiji) have been considered in a number of cases in this court and the Supreme Court. In Jamnadas & Co. Ltd. v. Public Trustee and Prasad Studios Ltd. (Civil Appeal No. 39 of 1972 - unreported) this court said –
ANALYSIS and DETERMINATION
‘The indefeasibility of title under the Land Transfer Act is well recognized; and the principles clearly set out in a judgment of the New Zealand Court of Appeal dealing with provisions of the New Zealand Land Transfer Act which on that point is substantially the same as the Land Transfer Act of Fiji. The case is Fels v Knowles 26 N.Z.L.R. 608. At page 620 it is said;-
“The cardinal principle of the statute is that the register is everything, and that, except in case of the actual fraud on the part of the person dealing with the registered proprietor, such person, upon registration of the title under which he takes from the registered proprietor, has an indefeasible title against all the world.”
Proprietary Estoppel
“ that on or about 1995, the Defendant and his wife were approached by Narayan (the deceased) to relocate from where they were initially living at Korociriciri, Nausori to the property they are occupying at the current moment. The deceased also indicated that the Defendant and his wife could build their home on his land and that they would have an unfettered right to reside on his property and that the deceased would also allow them the right to subdivide the portion of the land that they were to live on. The Plaintiffs however, are now stating that the Defendant is not entitled to the land and also does not have any legal right to occupy it.”
p>"... is that the licensee should, uld, at the request or with the encouragement of the landlord, have spent oney in expectation of bein 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).
'I must analyse whether the four conditions have been met for the defense of proprietary estoppel to apply. The four conditions are:
i. An expenditure;
ii. A mistaken belief
iii. Conscious silence on the part of the owner of the land; and
iv. No bar to the equity
Likewise, as per the second condition-
(ii) Mistaken Belief- the Defendant's submission at paragraphs 3.10 – 3.14 has also been taken into consideration, and the Defendant points out to the court that the mistaken belief was due to the deceased verbally informing the Defendant and the conduct of the deceased thereafter 'that once the subdivision of the said property was carried out, the land on which his home is erected and on which he had been living on since 1995 would be transferred to the Defendant."
(iii) Conscious silence on the part of the owner of the land- The Defendant's submissions at paragraphs 3.15 – 3.25 has been considered including the Defendant stating that the failure on the part of the Plaintiff to take action against the Defendant clearly demonstrates that the Plaintiffs have wilfully stood by and encouraged the mistaken belief on the part of the Defendant that he had unfettered right on the said property. Further, stating that the first Plaintiff has nothing to do with Narayan's Estate since there was no need for him to wait for 10 years after the death of Narayan to take out eviction proceedings. First Plaintiff became the registered proprietor of the piece of land in 2002 yet he did not institute any proceedings to evict the Defendant until very recently.
(iv) No Bar to Equity- The Defendant quoted the case of Blue Latitude Ltd supra Snell's Equity at page 576 (29th Edition 3rd Impression 1994) under 'No bar to equity' was referred to and it stated as follows:
"No equity will arise if to enforce the right claimed would contravene some statute, or prevent the exercise of a statutory discretion or prevent or excuse the performance of a statutory duty."
"Proprietary estoppels are one of the qualifications to the general rule that a person who spends money on improving the property of another has no claim to reimbursement or to any proprietary interest in the property..."
(i) Expenditure - The Plaintiff stated in his affidavit in opposition that the Defendant made some improvements to the land in question although such expenditure was for the benefit of the Defendant and not for the owners of the land. The issue therefore was whether such expenditure gives rise to create any right to the land and continuation in possession. No evidence was produced to establish that the Defendant had obtained any consent from the owners to build a dwelling on the said property or to make any improvement. It is to be noted that there was no consent, promise or undertaking of any nature made by the Plaintiff's to the Defendant. Further, no documentary evidence has been produced by the Defendant with respect to the building of 3 bedroom house and how much of improvements have been made by him.
(ii) Mistaken Belief - The Plaintiff submitted that in order to satisfy the court on this limb, the onus is on the Defendant to prove that he had some sort of genuine belief that he owned the land he was living or had ownership rights to the land. No evidence has been produced by the Defendant to state that the Defendant was allowed to stay on the land indefinitely and after the subdivision of the land the said property the Defendant shall have a portion of the land transferred to him. He further stated that the Defendant stated at paragraph 8 in his affidavit in reply that due to verbal representation and assurance by the Deceased (Narayan) in 1995 his family moved onto the said property and built their home. What needs to be noted is that the deceased was not the registered proprietor until 05th February, 2002, as such any representation and or agreement made by the Deceased in 1995 is to be considered void ab initio. The Defendant quoting the case of Datt v Datt Civil Appeal No. ABU 32 of 2013, and Snell's Equity, further stated that 'belief either that he already owned a sufficient interest in the property to justify the expenditure or that he would obtain such an interest..."And therefore has no equity in respect of his expenditure.'
(iii) Conscious silence - the Plaintiff submitted that this implies there was knowledge on the part of the owners of the land that the person who was occupying the land was incurring expenditure and the owners had nothing to stop him from doing so. It is evident from the affidavit in reply of the Plaintiff that the owners told the Defendant that he could live on the said property and would be required to vacate the land when sub division occurs. The onus is on the Defendant to prove that the Plaintiff knew about the building of the house and took no steps to prevent the Defendant from incurring such expenditure. It is clear from the affidavit in reply that the Plaintiffs had stopped the Defendant from expanding the construction of the house. No evidence has been adduced by the Defendant to show that he sought consent to build on the land or incur expenditure.
(iv) No Bar to Equity - The Plaintiff submitted that is was clear from the affidavit of the Defendant that the structure built by him did not have building permits, consents, or approvals from Suva City Council. Quoting the case of Tuidama v Prasad [2011] HBC 508 of 2007 Mutunayagaum J said;
"Snell's Equity, 29 Ed, page 576 provides that 'no equity will arise if it is to enforce the right claimed would contravene some statute.'
No actions shall be brought-
(d) Upon any contract or sale of lands, tenements or hereditaments or any interest in or concerning them unless the agreement upon which such action is to be brought or some memorandum or note thereof in writing.'
(i) Expenditure- It is not in dispute that the Defendant had made some improvements to the land in question. There is no evidence before this court that the Defendant had obtained any consent written or otherwise or given any promises to build a dwelling on the said property. Further, no evidence of any building plans have been furnished to court. Any expenditure in terms of erecting any building or carrying out any improvement on the premises in absence of any consent or promise by the Plaintiffs was at the disposal of the Defendant and not for the benefit of the owners. Therefore, any alleged expenditure does not give rise to create any right to the land and possession by the Defendant.
(ii) Mistaken Belief- According to the Defendant, he has been living on the land since 1995 and he was under the mistaken belief that the Deceased verbally informed the Defendant that once the subdivision of the property was carried out, the land on which his house is erected would be transferred to him. Upon the perusal of the Certificate of Title No. 11249, it can be ascertained and confirmed that the Deceased (Narayan) only became the registered proprietor of the property on 05th February, 2002. Therefore, it was not possible for the Deceased (Narayan) who did not have the title to the property then, would entitle him to make any verbal promises or otherwise of the transfer of the property after subdivision as alleged. Again, there is no evidence of any agreement or document before this court which would have confirmed that the Deceased in fact had promised the transfer of the part of the property occupied by the Defendant to be transferred to him after the sub division.
(iii) Conscious Silence- This implies knowledge on the part of the Plaintiffs, as proprietors and administratrix, that the Defendant who was in occupation of the part of the property was incurring expenditure and the owners did nothing to stop him from incurring further expenditure. The second Plaintiff in his affidavit in reply sworn on 13th April, 2015 states that it is immaterial that the Defendant had been in occupation of the said land for 2 decades. That after the Defendant and his wife were evicted from the Korociriciri Road, Nausori, they resided with the Deceased (Narayan) and his family on the said land. It was agreed by the deceased and the Plaintiff that they can be allowed to erect a house on the land but are subjected to be evicted from the property when the land is to be sub divided. Further, at paragraph 9, the Plaintiff states "that the Defendant was stopped to expand the construction of the house as it was relayed to them they will be evicted during the process of sub division of the said land.' There is no evidence furnished to this court on any expansion and expenditure as per paragraph 9 of the Defendant's affidavit in opposition filed on 08th November, 2015.
(iv) No Bar to Equity- According to the Defendant, no statute or performance of a statutory duty will be contravened if equity arises. The Defendant's affidavit in Opposition at paragraph 9 states that initially he built a two bedroom house which his son later expanded to a three bedroom, eight years ago. The affidavit does not furnish any evidence of any plans, permits, consents or approval from the area council or the local authority.
Hon. Justice Mutunayagaum in the case of Tuidama v Prasad [2011] HBC 508 of 2007 held-
"Snells Equity, 29 Ed, page 576 provides that 'No equity will arise if it is to enforce the right claimed would contravene some statute."
The Judge further discussed the failure of the Defendant in not complying with section 59 (d) of the Indemnity, Guarantee and Bailment Act by stating 'that the Defendant had not complied with the provisions that there was no sale and purchase agreement entered into by the parties.
Section 59 (d) of the Indemnity, Guarantee and Bailment Act, Cap 232 provides-
No action shall be brought;
(d) Upon any contract or sale of lands, tenements or hereditaments or any interest in or concerning them unless the agreement upon which such action is to be brought or some memorandum or note thereof in writing.'
In the present case, the Defendant stated that the deceased (Narayan) approached him and his wife to relocate from Korociriciri Road, Nausori to deceased's land in Wailoku, Tamavua and gave an unfettered right to live on the said property and that he would allow them the right to sub divide the portion of the land they lived on.
The Defendant has failed to furnish court with any agreements or other documentary written evidence in order to show to court that the Deceased and the Defendant did enter into any sort of agreement which would be in conformity with the abovementioned Act.
On the other hand, Town and Country Planning Act Cap 139 restricts any developments on a land unless proper consents have been obtained from the local authority.
The Defendant has failed to furnish court with any plans, permits or approvals to prove any building and expansion of the two-three bedroom house on the said property by the Defendant on the consent of the owners of the land in question.
FINAL ORDERS
Dated at Suva this 16th day of March, 2016
...........................................
MR VISHWA DATT SHARMA
Master of High Court, Suva
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