Appiamma v Prasad [2017] FJHC 922; HBC110.2014 (24 November 2017)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

[CIVIL JURISDICTION]

Civil Action No. HBC 110 of 2014

IN THE MATTER of an application under section 169 of the Land Transfer Act (Cap 131)

BETWEEN : APPIAMMA of Colasi, Rakiraki, domestic duties

Plaintiff

AND : ASHOK PRASAD of Colasi Settlement, Rakiraki.
Defendant

Before :Acting Master U.L. Mohamed Azhar

Counsels :Mr. A. Liverpool of Reddy & Nandan Lawyers for the plaintiff
Mr. J. Singh of Samusamuvodre Sharma for the Defendant

Date of Judgment : 24^th November 2017

JUDGMENT

01. The plaintiff took out the summons for ejectment on 07^th July 2014 under section 169 of the Land Transfer Act Cap 131 against the defendant and sought an order on the defendant to deliver vacant possession of the premises described in the summons as follows; premises on the land comprised of and described in the Crown Lease No.19085, deposited plan No. (d) SO435 situated in the Province of Ra on the Island of Viti Levu and occupied by the defendant. The summons is supported by an affidavit sworn by the plaintiff herself. The copy of the Agricultural Lease No 19085 is marked as “A” and annexed together with the written notice sent by the solicitors of the plaintiff, which is marked as “B”.

02. The plaintiff, in a very short affidavit claimed that, she is the lessee of the above land as the Administratix of the Estate of Gopal; the defendant has been living on that property without any legal right to stay or occupy the said property and refusing to hand over the vacant possession of the same despite notice sent by her solicitors.

03. The defendant upon service of the above summons, appearing in person filed his affidavit in opposition and admitted that the plaintiff is the Administratix of the Estate of Gopal and further stated that, the plaintiff is not the owner of the said Crown Lease. Attaching a Memorandum of Agreement as annexure “A”, the defendant stated that, he bought the said property from its owner – the husband of the plaintiff late Gopal. The defendant further stated that, he paid $ 5,000.00 to the owner of the property and he is willing to vacate the same if sum of $ 55,000.00 is paid as compensation. He sought the dismissal of the summons filed by the plaintiff and the cost whilst asserting that, he has legal right to stay on the said property. He annexed the copy of the Memorandum of Agreement marked “A”. In addition, he annexed two letters one is signed by Gopal dated 20.08.2010 and the other is signed by one Ganeshwar Rao and Gopal and dated 20.08.2010, a declaration signed by five people from Rakiraki, a letter dated 15.08.2011 and issued by one Ganga Prasad, a Justice of Peace, a Tax Invoice dated 10.09.2007 issued by one Ashneel V Reddy for levelling the house area and two receipts dated 11.04.2008 and 15.07.2008 and issued by a Builders whose seals affixed in the said receipts are illegible.

04. The defendant thereafter with the leave of the court filed supplementary affidavit on 21.11.2014. This second affidavit is sworn by him and filed by his solicitors. The defendant stated almost the same facts, which are contained in his original affidavit, in his supplementary affidavit. He specifically stated that, he was hired by late Gopal to work in the sugarcane farm of latter in sometimes 2009 and since then he has not been paid his salary which amounts to $ 4,580.00. He then entered into a Memorandum of Agreement which is annexed with his original affidavit to buy the said premises for the consideration of $ 5,000.00 from the then registered owner late Gopal. After he purchased the same he started to develop the same. He originally claimed a compensation of $ 55.000.00, however, in his supplementary affidavit, he reduced it to only $ 25,380.00 being the loss of wages of $ 4,580.00, compensation as to breach of agreement in sum of $ 15,000.00 and cost of development carried out in the said property in sum of $ 5,800.00.

05. The plaintiff thereafter filling the affidavit in reply denied the averments of the defendant and specifically stated that, there was no sugarcane at that time and only vegetable and fruit farming was there. She further stated that, the defendant was never hired by them.

06. At the hearing of the summons, counsels for both parties, agreed to file the written submissions and they relied on their respective affidavits. The counsel for the plaintiff tendered a written submission in court and the defendant’s counsel informed that, he already filed the submission on 17.09.2015 and he would rely on that submission. Then both counsels agreed to file the submissions in reply, if any, and the matter was adjourned accordingly for their reply submissions. However, only the plaintiff filed the reply submission.

07. The procedure under the section 169 of the Land Transfer Act Cap 131 is a summary procedure to promptly and speedily restore the registered proprietor to the possession of the subject property when the occupier is unable to show his or her right to possess the particular property. This section provides a speedy procedure for obtaining possession when the occupier fails to show cause why an order should not be made: Mishra JA in Jamnadas v Honson Ltd [1985] 31 FLR 62 at page 65. The rationale for this speedy remedy available for the registered proprietors stems from the cardinal principle of the statute that, the register is everything and in the absence of any fraud, the registered proprietor has an indefeasible title against the entire world. The Fiji Court of Appeal in Subaramani v Sheela [1982] 28 FLR 82 (2 April 1982) held that:

The indefeasibility of title under the Land Transfer Act is well recognised; and the principles clearly set out in a judgment of the New Zealand Court of Appeal dealing with provi of the New Zealand i> which on that pointubstantitantially the same as the Land Transfer Act&of Fiji. The case is Fels v. Knowles&26 N.Z.L.R..L.R. 608. At page 620 it is said::

"The cardinal principle ofstatute is that the registegister is everything, and that, except in case of 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."

08. The relevant provisions of the Land Transfer Act Cap 131 are as follows;

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 regid proprietor otor of the land;

(b) a lessor with pto re-enter nter where the lessee or tenant is in arrear for such period as may be providedhe lease and, in the absence of any such provision therein,rein, 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.

Particulars to be stated in summons

170. Theons shall contain a descripscription 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.

Order for possession

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.

Dismissal of summons

172. 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, mortgagee 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.

09. Simply, the sections 169 and 170 set out the requirements for the applicant or the plaintiff and the application respectively. The Locus Standi of the person who seeks order for eviction is set out in section 169 and the requirements of the application, namely the description of land and the time period to be given to the person so summoned, are mentioned in section 170. The other two sections namely 171 and 172 provide for the two powers that the court may exercise in dealing with the applications under the section 169. The burden to satisfy the court on the fulfillment of the requirements under section 169 and 170 is on the plaintiff and once this burden is discharged, it then shifts to the defendant to show his or her right to possess the land. The exercise of court’s power either to grant the possession to the plaintiff or to dismiss the summons depends on how the said burden is discharged by respective party to the proceedings.

10. The plaintiff in a very short affidavit, which supports her summons, averred her locus standi to file this summons against the defendant, where she states that she is the Administratix of the Estate of late Gopal. The defendant in his both affidavits admitted that she is the Administratix. However, in his original affidavit, the defendant stated that, she is not owner. The section 2 (1) of the Land Transfer Act Cap 131 defines the term Proprietor and it means ‘the registered proprietor of land, or of any estate or interest therein’. The Crown Lease No. 19085 which is registered by the Registrar of Titles clearly states that, the plaintiff is the Administratix of the Estate of Gopal. Thus, the objection of the defendant is meritless.
    
11. The second requirement is the particulars to be stated in the summons, which is description of the land as required by the section 170. The fact that, the application for ejectment involves with the property right of a citizen and the order for possession deprives him from his right, which has more effect on his social and economic wellbeing, the courts in all jurisdictions had a tendency to be little tough on the applicant, especially in relation to compliance and the technicalities of the respective statute. This resulted in the judgement of Atunaisa Tavuto &#16umeshwar Singh< HBC 332/97L and the court held that, in application such as under section 169 of Land Transct, the technicalities are strictly construed, because of the drastic consequences that folt follow for one of the parties upon the r sought being granted. That That was a case where an application for vacant possession was sought, however, the applicant failed to give the particulars such as Crown Lease number, lot number and the situation of land, though the Housing Authority Lease number was correctly mentioned. The court dismissed the summons stating that, it behoved the plaintiff and his counsel to have exercised more diligence in that regard.
    
12. The above case, however, was distinguished by Prakash J, in Wati v Vinod [2000] 1 FLR 263 (20 October 2000) and it was held that:

“The Court has not been provided nor able to locate any authorities to suggest that "a description" as per section 170 means a full description of the land. The Act itself does not specify what a. description of the land entails. What is adequate or full description? What is a sufficient description? The purpose is clearly for the parties to be informed as to what land the application relates to. This is clear from the supporting affidavit. In this regard I cannot concur with the sentiments of my brother Justice Madraiwiwi in Atunaisuto&##60; v Sumv Sumeshwar Singh(Civil Action No. HBC0332 of 1997L) submitted by the Defence Counsel in support of his argument on s.170. It is not cleat Ju Madri had meant in stating that "The Summonummons is s is defective in not properly describing bing the subject property" (emphasis added). It is not clear whether "a description means full or proper description. Further, the Supreme Court in the case of Po v Dharam Lingam ReddyReddy (Appeal No. 1 of 1996) was dealing with the need for compliance with the Supreme Court Rule a statutory provision such as Section 170. The statute does not clearly specify what "a de"a description" requires. In Vallas Prev. Vinod Lal, Lal, Nan, Nanki and Koki (Civil Appeal 70 of 1the Cohe Court of Appeal had accepted a description as in tesent summons as sufficient”.

13. Seemingly, the vihe view of Prakash J is based on the plain and unambiguous meaning of the statute which does not specify what description of land entails and what is adequate or full description of the land. It is not the duty of the court to impose more conditions and restrict the interpretation of a statute when the wording is clear and unambiguous. What is actually required by the statute is whether the person, so summoned to appear, had the full knowledge, without any misunderstanding, of the land and premises from which he ought to be evicted. If there is any misunderstanding of premises which is the subject matter of the proceeding, it should be brought by the person who is so summoned to show cause and in the absence of any such misunderstanding, the description given by any applicant seems to be sufficient and adequate under the section 170 of the Land Transfer Act. This view is supported by decision of the Court of Appeal in Premji v Lal [1975] FJCA 8; Civil Appeal No 70 of 1974 (17 March 1975). It is incumbent on the court to consider the property right of the person so summoned under this application. However, the more emphasis should not be given to such property rights, at the expense of a registered proprietor of a land, who has indefeasible title against the entire world by Torrens system of land registration. Accordingly, the reasoning of Prakash J in Wati v Vinod (supra) seems to be more rational than the view of Madraiwiwi J in Atunaisa Tavuto v SumesSingh/i>< (sb> (supra). These two judgments are from the High Court and in same footing. Therefore, for better reasoning I prefer the view of Prakash J over the other. Accordingly, if an applicant can give the description of a land or premises which can give clear understanding for the persons so summoned under this section, the former is deemed to have discharged his duty under this section.
    
14. In the instant case, the plaintiff in her supporting affidavit sought an order on the defendant to deliver vacant possession of all that piece or parcel of land premises on the land comprised of and described in the Crown Lease No.19085, deposited plan No. (d) SO435 situated in the Province of Ra on the island of Viti Levu. In my view this is adequate and full description as required by the section. The defendant never disputed the identity of the premises and the question of description did not arise. The said summons was served and the defendant was given time more than what is required by the section. Accordingly, the plaintiff has discharged the onus casted by the section on her in this application.
    
15. The section 171 requires the proof and production of ‘consent’ if any such consent is necessary. The question is therefore, whether any consent from the Director of land is necessary for an application under 169. This matter has been settled by His Lordship the Chief Justice Anthony Gates (as His Lordship then was) in Prasad v &#1601[200La FJLawRp 31; [21; [2001] 1 FLR 164 (30 April 2001). His Lordship held that:
    

“At first sight, both sections would seem to suggest that alicanuld fobtain the Directirector's or's writtwritten consent prior to the commencement of section 169 proces angs and exhibit it to his affidavit in support. However I favour Lyons J.'s approach in Parvati Narayan v Suresh Pra160;><&#16> (unreportedtoka High Court ourt Civil Action No. HBC0275 of 15th August 1997 at p 4 in 4 insofar as his Lordship found that consent was not needed at all since the:

"section 169 applicatioich is the ridding off the the land of a trespasser) is not a dealing of such a nature as requires the Director's consent."

This must be correct for the Director's sanction is concerned with who is to be allowed a State lease or powers over it, and not with the riddance of those who have never applied for his consent. With respect I was unable to adopt the second limb of Lyons J's conclusion a few lines further on where his lordship stated that the order could be made conditional upon the Director's consent. For if the court's order of ejectment was not "a dealing" then such order would not require the Director's consent and the court would not be subject to section 13. Thet is nots not concerned with the grant of or refusal of, consent by the Director, provided such consent is given lawfully. Consent is solely a matter for the Director. The statutory regime appto acknowledge that the Dire Director's interest in protecting State leases is supported by the court's order of ejectment against those unable to show cause for their occupation of the land which is subject to the lease. The court is asked to make an order of ejectment against a person in whose favour the Director either, has never considered granting a lease, or has never granted a lease. The ejectment of an occupier who holds no lease is therefore not a dealing with a lease. Such occupier has no title. There is no lease to him to be dealt with. The order is for his ejectment from the land. There is no need for a duplicating function, a further scrutiny by the Director, of the Plaintiff's application for ejectment either before or after the judge gives his order”.

16. The section reads as ‘...if any consent is necessary..’ and the above authority clearly states that, the consent of the Director for the application under 169 is not necessary. It follows that, the question of consent does not arise in applications under section 169.
    
17. As discussed above, the plaintiff has fulfilled the requirements under sections 169 and 170. Thus, the onus now shifts to the defendant to show his right to possess the land and premises in dispute in this application. The Supreme Court in the case of >Morris Hedstrom Limitedmited –v- Liaquat Ali CA No: 1 said that:that:

"Under Section 172 erson summonsed may show cause why he refused to give possession of the land if he proves tves to the satisfaction of the Judge a rig possession or can establisablish 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 n say that finalfinal or incontroble proof of a&#f a right to remn possession muon must be adduced. What is required is that some tangible evidence establishing ht or supr supporting an arguable case for s righ0;must be adducedduced." (Emphasis adde>

1. Th/b>The duty on the defendant is now not toot to produce any final or incontestable proof of his right to remain in the property, but to adduce some tangible evidence establishing a right or supporting an arguable case for his right. On perusal of both affidavit filed by the defendant it reveals that, he is claiming his right to possess the property in dispute on two grounds, namely, (a) that he purchase the property for consideration of sum of $ 5,000.00 from the previous owner – the late Gopal and (b) he has equitable rights over the property by his development and building a dwelling house therein. I now turn to discuss his defences.
   
19. As stated above, the defendant tendered the copy of Memorandum of Agreement with his affidavit to substantiate his first defence. It is evident from the said Memorandum that it was entered between the defendant and late Gopal on the 12^th day of August 2010. However, the question is whether this is a valid agreement to confer any right of possession to the defendant? The land in dispute involves with the ‘protected lease’ which comes under the State Lands Act formally known as Crown Lands Act. The section 13 of the State Lands Act provides as follow;

Protected leases

13.-(1) Whenever in any lease under this Act there has been inserted the following clause:-

"This lease is a protected lease under the provisions of the Crown Lands Act"

(hereinafter calledotected lease) it shall notl not be lawful for the lessee thereof to alienate or deal with the land comprised in the lease of any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever, nor to mortgage, charge or pledge the same, without the written consent of the Director of Lands first had and obtained, nor, except at the suit or with the written consent of the Director of Lands, shall any such lease be dealt with by any court of law or under the process of any court of law, nor, without such consent as aforesaid, shall the Registrar of Titles register any caveat affecting such lease.

Any sale, transfer, sublease, assignment, mortgage or other alienation or dealing effected without such consent shall be null and void.

(2) On the death of the lessee of any protected lease his executors or administrators may, subject to the consent of the Director of Lands as above provided, assign such lease. (Emphasis added)

20. The consent of the Director of Lands is a must for any sale, transfer, sublease, assignment or other alienation or dealing with the lands coming under this section. The Memorandum signed by the defendant and late Gopal clearly coming under the term ‘dealing’ in the above section and warrants the consent of the Director of Lands before its being effected. The defendant stated in paragraph 12 of his supplementary affidavit that, the agreement was for him to pay $ 5,000.00 and then necessary application for consent will be lodged with the lands department. It is therefore clear that, no consent was obtained from the Director of Lands before entering into the said Memorandum of Agreement. His Lordship Justice Chitrasiri JA (with whom His Lordship Justice Calanchini AP and Her Ladyship Justice Wati JA agreed) referred to section 13 of the State Lands Act formally known as Crown Lands Act and held in Reddy v Kumar [2012] FJCA 38; ABU0011.11 (8 June 2012) as follows;

[9] The above section of the Crown Lands Act, clearly stipulates that it is unlawful to alienate or deal with a land comng a lease unless the written consent of the Director of Laof Lands first had and obtained. It is further stated that any sale or transfer or other alienation or any dealing effected in respect of such land without the consent of the Director of Lands shall be null and void. Accordingly, a statutory bar is being imposed for the transactions or dealings affecting Government land or part thereof which is subjected to a protected lease unless and until the consent for such a transaction is obtained from the Director of Lands beforehand. Therefore, if any dealing in respect of a Government land is effected without the consent referred to above, such a transaction shall be considered ab intio void&#1d has no efno effect or force in the eyes of the law.

[10] When looking at the said Section 13, it seems that the consent of the Director referred to therein should be given by hly upon considering the tote totality of the provisions contained in the Crown Lands Act. That power of the Director cannot be exercised by a person functioning in another capacity thanhe Director of Lands. [Section 13(4) of the Act] However, ier, it must be noted that it does not mean that the right to review decisions of the Director or the Minister, if there had been an appeal under Section 13(3) to the Minister, is taken away from the jurisdiction of Courts but of course subject to the provisions of the law prevailing in Fiji. Hence, the requirement to have the consent of the Director under the Crown Lands Act stan a mandatory requiremenrement before any transaction or similar dealing is effected in respect of a leasehold Government lai>

Accordingly, the Memorandum, on which the defendant relies for his right to possess the said premises in dispute, in not valid in the eyes of the law and therefore, it cannot give any right to the defendant. Thus, I am unable to accept his first defence.

The defendant in his both affidavit stated that, he constructed a house and spent money on developing the land. It seems that, he is claiming the equitable rights over the property. This is his second defence. The equitable rights could be either promissory estoppel or proprietary estoppel. Snell's Principles of Equity (28th Edition 1982) at page 556 state the rule of promissory estoppel as follows

“Where by his words or conduct one ptoty transaction fron freely makes to the other an unambiguous promise or assurance which is intended to affect the legal rela between themm (whether acor otse) a, and and befu>before iore it is withdrawn, the other party acts upon it, altering this position to his detriment, the party g theise or assurance&ance will not bmitted to act inct inct inconsistently with it. It is essential that the representor knows that the other party will act on his statement. Yet the conduct of the party need not derive its origin only from the encouragement of representation of the first; the question is whether it was influenced by such encouragement or representation”. (Emphasis added)

23. The conditions for the promissory estoppel are; (a) word or conduct which can freely make an unambiguous promise, (b) intention to affect the legal relations and (c) other party’s action altering position before withdrawal of promise. The same book Snell's Principles of Equity (28th Edition 1982) at page 558, expounds the rule on proprietary estoppel. It states:

“Proprietary estoppel 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 the property. Proprietary estoppel is older than promissory estoppel. It is permanent in its effect, and it is also capable of operation positively so as to confer a right of action. The term "estoppel", though often used, is thus not altogether appropriate. Yet the equity is based on estoppel in that one is encouraged to act to his detriment by the representation or encouragement of another so that it would be unconscionable for another to insist on his strict legal rights”.

24. At pages 560 and 561the conditions for the proprietary estoppel have been explained with the illustrations as follows;
    
    • (1) Expenditure. In many cases A has spent money on improving property which in fact belongs to O, as by building a house on O’s land, or by doing repairs to O’s house and paying mortgage instalments and other outgoings, or by contributing to a joint venture to be carried out on O’s land, or by paying premiums required to maintain O’s life insurance policy.
      

(b) Expectation or belief. A must have acted in the belief either that he already owned a sufficient interest in the property to justify the expenditure or that he would obtain such an interest. But if A has no such belief, and improves land in which he knows he has no interest or merely the interest of a tenant (or licensee), he has no equity in respect of his expenditure.

(c) Encouragement. A’s belief must have been encouraged by O or his agent ^or predecessor in title. This may be done actively, as where a father persuades his son to build a bungalow on the father’s land, or a mother assures her daughter that she will have the family home for her life, or a man assures his former mistress that the house in which they lived together is hers.

(d) No bar to the equity. 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

25. The defendant as stated above, filling two sets of affidavits averred that, he started to develop the property after purchasing the same. He specifically stated in paragraph 14 and 15 of his supplementary affidavit that, he bought 50 loads of soil and hired the digger for 15 hours which cost him $ 4,000.00 and constructed a house at the cost of $ 1,800.00. However, he did not attach any documents for the same in his supplementary affidavit, but he submitted some documents with his original affidavit for the proof of the above expenditures. One is the Tax Invoice issued by one Ashneel V. Reddy. It states as follows;
    

Levelling House Area

50 Loads soil x $ 50 per load 2,500.00

15 Hours Digger 900.00

5 Loads Gravel 600.00

Total 4,000.00

26. It superficially appears that, the defendant spent the above sum in developing the land. However, a careful perusal of the said Invoice reveals that, the Invoice is dated as 10.09.2007. The defendant in paragraph 8 of his supplementary affidavit stated that, he was hired by the deceased Gopal sometimes back in 2009. Then his entrance to the disputed property was in year 2009 and he entered into agreement to buy the same on 12^th day of August 2010. If that is the case, how he could have spent $ 4,000.00 in year 2007 for developing the land as evident by his own document, which is the above Invoice dated 10.09.2007? This clearly shows that, the Invoice is prepared for the purpose of defending this action.
    
27. This is not the only inconsistency between his averments and the documents he relies on. The paragraph 15 of his supplementary affidavit contradicts with the two receipts he submitted with his original affidavit. In the said paragraph he stated that, he spent $ 1,800.00 to build the house. The two receipts are issued by the same builder, though the name of the builder is illegible on the seal affixed. Both the receipts are dated 11.04.2008 and 16.07.2008 respectively. However, he asserted in his affidavit that, he built the house after purchasing in year 2010. This fact clearly doubts the truthfulness of his averments and the documents he submitted to the court. Another notable contradiction is the declaration he attached with his original affidavit. That is the declaration by some of the villagers who declared that, the defendant bought the disputed land from Gopal in year 2007. However, his averments in the supplementary affidavit state that, he bought the same land from the said Gopal in year 2009. These material contradictions, between his affidavits and the documents attached with the affidavit and on which he relies, seriously attack the trustworthiness and credibility of his evidence submitted to the court. As stated above, he originally claimed a compensation of $ 55.000.00, however, in his supplementary affidavit, he reduced it to only $ 25,380.00 being the loss of wages of $ 4,580.00, compensation as to breach of agreement in sum of $ 15,000.00. However, it is not clear how he claimed $ 55,000.00 initially. These all make me disbelieve his averments in both affidavits. Therefore, I inevitably decline to accept the same for his claim of any equitable remedy. It follows that; his second defence too should fail.
    
28. Apart from those inter-contradictory averments and the documents, there is nothing in his affidavit to show that he has any kind of estoppel either promissory or proprietary. For the above reasons, I am of view that the defendant failed to adduce any tangible evidence establishing the right to possess the said property. It follows that, he must be ordered to immediately deliver the vacant possession of the property to the plaintiff who is the registered proprietor of the same under and by virtue of the protected leased issued to her. In addition, the plaintiff should be entitled for reasonable cost for bringing this application.
    
29. Accordingly, I make following final orders:
    
    1. The defendant is ordered to deliver the vacant possession of the property described in the summons to the plaintiff,
       
    2. The defendant is further ordered to pay a summarily assessed cost of $ 500.00 to the plaintiff within 14 days from today,
       

U.L.Mohamed Azhar
Acting Master

At Lautoka
24/11/17