Prasad v Singh [2016] FJHC 327; HBA09.2013 (27 April 2016)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA, FIJI ISLANDS

CIVIL APPEAL NO.: HBA 09 OF 2013

BETWEEN:

MAHESH PRASAD of Tagi Tagi, Tavua, Cultivator.
APPELLANT

AND:

SOHAN SINGH of 5917 Trawlerway, Citrus Heights,
Sacramento, CA 95621, United States of America.
RESPONDENT

Appearances:
Mr S. K. Ram for the Appellant
Ms. M. Latianara for the Respondent

JUDGMENT

1.0 Introduction and Background

1.1 This is an appeal from the decision of the Master dated 30th April, 2013

granting vacant possession of the land comprised in Native Lease No. 29433 to the Respondent under Section 169 of the Land Transfer Act.

1.2 The Master of High Court made the following Orders in his Judgment dated

30th April, 2013.

(i) The Defendant (Appellant in this matter) to vacate the property in 28

days.

(ii) Costs summarily assessed in a sum of $850.00 to be paid to the Plaintiff

(Respondent in this matter).

2.0 Grounds of Appeal

2.1 The Appellant is appealing the said Judgment upon the following grounds:

• (i) The Learned Master of the High Court erred in law in holding that the Respondent had not shown cause under Section 172 of the Lands Transfer Act to remain on the premises occupied by him when he had presented an arguable case to remain on the land in that:-
  
  • (a) The Appellant had established a purely personal right against

the Respondent to remain in possession of the land in accordance with the principles as established in the Privy Council decision of Maharaj v Chand [1986] 3 AII ER 107; and

(b) The Appellant had established a right to remain on the land under the Doctrine of Promissory Estoppel and laws of equity.

(ii) The Learned Master of the High Court erred in Fact in holding that the Respondent's son did not have any authority or agency relationship to bind the Respondent and the Appellant to the Sale and Purchase of Land known as Lot 22 on RR 916 Tagitaginatua Subdivision in the Tikina of Tavua province of Ba containing 7 acres 2 roods and 15 perches.

(iii) The learned Master of the High Court erred in Law in holding that consent was required from the iTaukei Land Trust Board for the Appellant to show cause to remain on the land when:-

• (a) The Appellant's rights arose out of a representation/promise made by the Respondent and/or his agents or servants which, for a purely personal right, was an exception; and
  
• (b) The issues of whether the relationship between the Appellant and the Respondent fell within the ambit of Section 12 of the Native Lands Trust Act could not be determined by way of summary proceedings.
  

(iv) The learned Master erred in law and in fact in not holding that the

issues raised in argument could not be appropriately dealt with by way of summary proceedings.

(v) The learned Master erred in law in ordering the Appellant to pay cost

in the sum of $850.00.

2.2 Accordingly the Appellant is seeking to set aside and revoke the Orders made

by the Master and enter Judgment in favour of the Appellant and Order a fresh trial and/or make any other relief it deems just and expedient and the costs of this appeal and all costs below to be paid by the Respondent.

3.0 Hearing

3.1 When this matter was taken up for hearing on 31st July, 2015 Counsel for the

Appellant and the Respondent argued the matter orally. The Counsel for the Appellant has also tendered a written submission at the conclusion of the hearing.

4.0 Analysis and Determination

4.1 I will first deal with Grounds of Appeal No. (ii) by which the Appellant

argues that the Learned Master erred in Fact in holding that the Respondent's son did not have any authority or agency relationship to bind the Respondent and the Appellant to the Sale and Purchase of the Land.

4.2 The receipt with a note which the Appellant relies as evidence of a Sale and

Purchase of the land is signed by the Appellant and the Respondent's son on 13th January, 2008. Therefore the issue is whether the Respondent's son had a Power of Attorney authorising him to sign the said receipt at the time of signing it.

4.3 In the Affidavit of Respondent's Attorney, Balbir Singh sworn on 19th June,

2009 and filed in the 169 Application he has deposed that he is the lawful Attorney of the Respondent and on or about 9th June, 2009 the Respondent (Plaintiff in the 169 application) revoked the Power of Attorney given by him to his son Pradeep Singh and paid a sum of $88.00 to his then Solicitor to attend to revocation of Power of Attorney given by the Respondent to his son.

4.4 It is evident from the facts deposed by Balbir Singh as above that the

Respondent's son had a Power of Attorney at the time he signed the receipt and it was only after 9th June, 2009 it was revoked. As such I agree with the contention of the Appellant that the Master has erred in Fact by holding that the Respondent's son did not have any authority or agency relationship to bind the Respondent and the Appellant to the Sale and Purchase of the Land.

4.5 Next ground of appeal is that the Master erred in law in holding that the

Respondent has not shown cause under Section 172 of the Lands Transfer Act to remain on the premises occupied by him when the Appellant had established a purely personal right against the Respondent to remain in possession of the land in accordance with the principles as established in the Privy Council decision of Maharaj v Chand [1986] 3 AIIER 107 and the Appellant had established a right to remain on the Land under the Doctrine of Promissory Estoppel and Law of Equity.

4.6 The Appellant contends that he sold his house based on the promise by the

Plaintiff that he would be given a place to live in. He also deposed that he gave the proceeds from the Sale to the Respondent's son. He argues that this was not purely commercial deal. It was a deal between people who knew each other and was based on a promise for a place to live.

4.7 The Appellant also relies on the acknowledgment and the receipt signed by

the Respondent's son acknowledging the payment of $3000.00 by the Appellant to establish that there was a promise given by the Respondent. (Documents marked as MP1 and MP2 annexed to the Affidavit sworn by the Appellant on 5th June, 2012).

4.8 It is clear from the said documents that the Appellant had not relied purely

on a promise to sell but gone beyond a mere promise by paying the purchase price for the property and going into occupation of the premises. Therefore the Appellant cannot argue that he is only relying on a personal right to stay on the land when he has paid the purchase price for it.

4.9 In Maharaj v Chand the case on which the Appellant relies the Privy Council

held that the Defendant had a personal right as the de facto partner of the Plaintiff because at the time of acquisition of the land and the building of the house the Plaintiff had represented to her and the children that she would be treated as living there as his wife and she had acted to her detriment in reasonable reliance on the representation by giving up her flat, she had supported the application to the Housing Authority, she had used her earnings to pay for household needs and she had looked after the Plaintiff and the children as wife and mother. On the said grounds Privy Council held it would be inequitable for the Plaintiff to evict the Defendant.

4.10 In considering the factual background of the aforementioned case I find that

the Appellant cannot rely on the said authority and claim a personal right to stay on the property in this matter. The Appellant in this matter does not adduce any evidence to prove that he had any relationship with the Respondent. Furthermore the Appellant is not relying on a mere promise to claim an equitable remedy. What he says is that he had paid the purchase price for the property and went into possession on the promise that it would be transferred to him. Therefore, I find that the authority cited by the Appellant's Counsel has no relevance to this matter.

4.11 As I have held that the Appellant's rights did not arise out of a

representation/promise made by the Respondent and/or his agents or servants I am of the view that the relationship between the Appellant and the Respondent falls within the ambit of Section 12 of the Native Lands Trust Act as the Land in question is an iTaukei Lands Trust Board Lease.

4.12 I will now refer to Section 12 of the Native Lands Act (Cap 134) which provides

as follows:

Consent of Board required to any dealings with lease

"Section 12(i):- Except as may be otherwise provided by regulations made hereunder, it shall not be lawful for any leassee 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."

[Emphasis added]

4.13 In Chalmers vs Pardoe [1963] 1 W.L.R. at page 684 (paragraph 3) and at page

685 it is stated as follows:

"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. 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 Section 12 of the Ordinance, c. 104, this dealing with the land was unlawful. It is true that Harnam Singh v Bawa Singh the Court of Appeal said that it would be an absurdity to say that a mere agreement to deal with land would contravene Section 12, for there must necessarily be some prior agreement in all such cases. Otherwise there would be nothing for which to seek the board's consent. But in the present case 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............................

Their Lordships after full and anxious consideration of the whole matter have reached the same conclusion as the Court of Appeal, namely, that a dealing in the land took place here without the prior consent of the board as required by Section 12 of the Ordinance: that the dealing was accordingly unlawful: and that in these circumstances equity cannot lend its aid to Chalmers."

[Emphasis added]

4.14 In this matter the Appellant had not only a license to occupy the land, he deposes that he paid the purchase price for the land and came to occupy the land with the promise that the Respondent will transfer the land to him.

4.15 Furthermore, in paragraph 18 of the said Affidavit sworn by the Appellant on 5th June, 2012 he has deposed that on or about 14th January, 2011 he lodged an application for a residential lease and the area he applied for as about 800m² which was approximately the area which the Plaintiff had sold to him. Copy of the application to lease the property lodged with the Native Land Trust Board is annexed to the said Affidavit marked as MP3.

4.16 It is established by the Appellant's own evidence as mentioned above that he has purchased a land area of 800m² from the Respondent without the consent having been obtained from the Native Land Trust Board. As such it is clear that the occupation of the land by the Appellant is not on mere promise given by the Respondent or on a personal right but on a commercial dealing which is null and void according to the provisions of Section 12 of the Native Land Trust Act. Therefore, I hold that equity cannot lend its aid to the Appellant in this matter and also that the Appellant cannot rely on the principle of Promissory Estoppel to occupy the land.

4.17 Due to the aforementioned findings I hold that the Master has not erred in law and in Fact in not holding that the issues raised in argument could not be appropriately dealt with by way of summary proceedings and also that he has not erred in law Ordering the Appellant to pay cost in the sum of $850.00.

5.0 Final Orders

5.1 Accordingly, I make the following orders:

• (a) The Appellant's appeal is dismissed.
  
• (b) The Appellant is ordered to vacate the said property within 30 days

from today.

(c) The Appellant to pay costs summarily assessed in a sum of $1000.00 to

the Respondent within 30 days from today.

Lal S. Abeygunaratne
Judge

At Lautoka
27 April, 2016