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Nand v Chand [2022] FJHC 107; HBC232.2017 (4 March 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION


Civil Action No. HBC 232 of 2017


IN THE MATTER of the Land Transfer Act, Section 169.


BETWEEN:


SHYAM NAND and DEO CHAND both of Navua, Fiji, Civil Servant and Farmer.


PLAINTIFFS


AND:


SHALESH VIKASH CHAND of Viwawa, Navua, Farmer.


DEFENDANT


BEFORE:
Hon. Justice Vishwa Datt Sharma


COUNSELS:
Ms Singh S. for the Plaintiffs
Ms Mishra N. for the Defendant


Date of Ruling:
Friday, 04th March, 2022 @ 9.30 am


JUDGMENT
[Vacant Possession pursuant to Section 169 of the Land Transfer Act]


On the outset the proceedings was commenced by an Originating Summons. It should be noted that the Originating Summons will now be continued as if the cause in the matter had been begun by a Writ of Summons (Order 28 Rule 9 of the High Court Rules 1988 refers).


A. INTRODUCTION

  1. This is the Plaintiff’s Amended Application seeking for the following Orders:-
  2. The Defendant filed his Affidavit in Opposition on 24th May 2018.

B. PRACTICE and PROCEDURE

  1. The Plaintiff has filed this application pursuant to Section 169 of the Land Transfer Act 1971.
  2. A Section 169 application is a summary procedure for possession which enable various categories of persons to call upon a person in possession of a property to show cause why he or she should not give up possession. One such category, specified in paragraph (a) of the section is ‘the last registered proprietor of the land’. (The Plaintiff falls under this category).
  3. Pursuant to Section 172 of the Act, the onus is on the Defendant to show cause why he is refusing to give up possession to the Plaintiff and why an order for possession should not be made against the Defendant.
  4. The Plaintiff is the registered proprietor in this instance as can be ascertained from the Certificate of Title No 40732 filed as annexure “KC2”. The term “proprietor” is defined as the registered proprietor of land, or of any estate or interest therein in the Land Transfer Act. Hence the term “proprietor” follows within the ambit of the Section 169 application.
  5. “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.”

  1. Pursuant to section 172 of the Act the onus is on the Defendant to show cause why he is refusing to give up possession to the Plaintiff and why an order for immediate vacant possession should not be made against him.

C. AGREED FACTS

  1. The Plaintiffs are the registered proprietors of the property contained in Certificate of Title No. 23643 being Lot 2 on DP No. 5906.
  2. The Defendant is the second-named Plaintiff’s brother.
  3. The second named Plaintiff gave the Defendant a written consent dated 11th November 2014 to build his house on the property.
  4. In or around 2014 the Defendant built his house on the said property.
  5. The Defendant and his family lived with the Defendant’s mother before building their house on the said property.

D. THE EVIDENCE

  1. The Plaintiffs Deo Chand (PW1) and Shyam Nand (PW2) gave evidence at the hearing:-

PW1 (evidence in chief):-

That he was one of the owners of CT 23643. The Defendant was his brother. That he had given him permission to build a wood and iron house on the land behind his house. There are 2 other houses on the land. That previously the Defendant was staying with their mother but had problems with her so he had shared his issues with him and since the Defendant was his brother, Deo allowed him to build a house on his land. Previously Police did not come to his land or house but since the Defendant came, the Police also started coming and he felt bad as Deo did not have issues with Police before. Defendant also took him to the PM’s office. He has served a notice to vacate the land so that he can safeguard himself from further problems with the Defendant. The Defendant and his wife still pass remarks and continue to cause problems with him. He did not give the land to the Defendant to own but there were also no discussions with him on eviction from the property. He did not promise to give Defendant title to the land or survey it for $800. His co-owner Shyam has not consented to give the Defendant living on the land. He had taken a loan of $2,000 from the Defendant of which $1,200 has been paid and a balance has been deposited with his solicitors. Up until last year the Defendant has been asking for the $800 but due to the Court case, he says that this was not refunded to the Defendant. He wanted the Defendant to vacate the property and pay legal costs of the case. He admitted that he had written letters but these were only to build a house but not to own the land. House was built by the Defendant in 2015 and eviction notice was given in 2016. He confirmed that Defendant was only permitted to reside on the land. That the Defendant did not pay him any monies to live on his land.

In cross-examination, PW1:-

That he was previously on good terms with his brother. Admitted that problems started when the 2 wives fought. He was allocated a land so that government grant can be given. On humanitarian grounds, gave permission for water and electricity connection. $800 was not for the Title. The Defendant’s wife was not present on any discussions.

In re-examination, PW1:-

He did not wish to the Defendant title or ownership to the land. He never had discussions with the Defendant for a title for $800. That he wants the Defendant to vacate the land so that he can be away from all problems.

  1. PW2 gave evidence as follows:-

That he is one of the owners of CT 23643 with Deo Chand. Salesh resides on the land. He wants Salesh to vacate the land. He was never consulted about bringing Salesh to the land. He signed the letters of Water and FEA. He was asked to sign a letter by Salesh and back date it but he refused.

  1. The Defendant Shalesh Vikash Chand (DW1) gave evidence and called his wife Priya Vandhana (DW2) to give evidence at the hearing.

DW1

That he lived on the land with his family. That Deo had given him consent to live. He had used the consent to obtain a grant from the Ministry of Rural Affairs. $2000 was given to Deo as a loan of which $1,200 was refunded and $800 was agreed by him in his wife’s presence to build a house. Deo Chand had consented for him to build a house and allocate the land to him. He understood that he could live on the land for his lifetime. That’s why he obtained grant from the government.

In cross-examination:

If there was no grant, then he could not build a house. Agreed that because of the goodness of Deo Chand, Salesh could build a house and live in it.Deo had taken his hand and moved him out of his mother’s land. A 15 x 13 house has been built by Salesh on the land and he admitted that he has not paid any monies towards it to Deo Chand or Shyam. Maintained that the $800 was for the Title. Admitted that Deo did not give him the land town but just to build a house on it. The notice to vacate was sent to him said that his permission to say on the land is cancelled but how can it be cancelled?

In re-examination:-

Deo Chand gave consent letter first and then he came on the land. Only to build a house. He expected land to be transferred to him afterwards. Deo Chand said he will keep the $800 for the Title purpose.

  1. DW2 gave evidence in chief:-

She was Salesh’s wife. Admitted that the property she lived on belonged to Deo Chand & Shyam Nand. Present when there was a conversation between Deo and Shyam which was that Deo Chand obtained a grant from the government and Deo gave Salesh a place to Salesh to build his house and said when I get title, I will give it to you. The house was built on the land at the end after Deo’s house. Nothing further was discussed.

In cross-examination

Deo Chand never spoke to her. Deo did not promise a title to them. She said that a loan of $4,000 was given by them to Deo Chand of which $800 remains with Deo and Deo in her presence said that in future, he will give the title to the land in my son’s name. Deo came to know of some monies Salesh got from Australia so borrowed $4,000. She wants to live on the land.


E. ANALYSIS & DETERMINATION

  1. The Plaintiffs have sought for an Order for Vacant Possession from the Defendant of all the property comprised in the Certificate of Title No. 23643 being Lot 2 on DP 5906.
  2. The Defendant has opposed the Plaintiff’s application, filed and served an Affidavit in Opposition.
  3. The issues that this Court needs to determine are the following:-
    1. Whether the Plaintiffs consented to the allocation of a piece of land to the Defendant for a temporary structure or an indefinite occupancy?
    2. Whether the consent given by the Plaintiff to the Defendant to build a house implies an intention to transfer or give the Defendant an indefinite occupancy of the property?
    3. Whether the Plaintiffs provided a consent letter to the Defendant only because it was a requirement from the Ministry of Rural & Maritime Development?
    4. Whether the Plaintiffs consented to the installation of power poles and water meter because the Defendant and his family needed water and electricity but not to own the said property?
    5. Whether the second-named Plaintiff verbally communicated to the Defendant to give the Defendant title to the land at an agreed price of $800?
    6. Did the Defendant lend the second0-named Plaintiff a sum of $2,000 for the renovation of the second-named Plaintiff’s house? If he has, did the Second-named Plaintiff pay back the Defendant the sum of $1,200?
    7. Whether the Defendant had a verbal agreement with the Plaintiff that he was to vacate the said property when required to?
    8. Did the Second-named Plaintiff simply allocate the piece of land to the Defendant because the Defendant had no place to live?
    9. Whether the Defendant has reasonable cause to keep living on the said property?
    10. Whether the Defendant is entitled to relief in equity?
    11. Should the Plaintiffs be entitled to the Order sought against the Defendant?
  4. The first Question for this Court to determine is whether the Plaintiffs have satisfied to this Court the pre-requisites of section 169 and 170 of the Land Transfer Act 1971.

If, the answer to the above question is in affirmative, then the burden shifts to the Defendant where he is required to show cause in terms of his right to remain on the Plaintiffs property and whether the Defendant has any arguable case before this Court, in terms of s.172 of the Land Transfer Act 1971?

  1. The procedure under s.169 is governed by sections 171 and 172 of the Land Transfer Act 1971 respectively which stipulates 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."

(Underline is mine for emphasis)

  1. In this case, the Plaintiff must first comply with the requirements of section 169 of the Land Transfer Act 1971, which are stated hereunder as follows:

(Underline for emphasis)

  1. In the instant case, the first limb of s169 applies. The Plaintiffs action falls under Section 169 (a) and the Certificate of Title No. 23643 being Lot 2 on Deposited Plan No. 5906 confirms that the Plaintiffs are the last registered proprietors of the same.
  2. Further, the Defendant has admitted that the Plaintiffs are the joint owners and the current registered proprietors of the property and there cannot be any dispute that the Plaintiffs are the registered proprietors of the Certificate of Title No. 23643 being Lot 2 on DP No. 5906. Therefore, this action has been rightfully commenced by the Plaintiffs against the Defendant.
  3. After the Plaintiffs have established the first limb test of section 169, then the Defendant bears the onus of showing cause as to why immediate vacant possession should not be granted by the Defendant to the Plaintiffs.
  4. Pursuant to section 172 of the Land Transfer Act Cap 1971, the Defendant needs to satisfy this Court on evidence that he has a right to possession. (Case of Muthusami v Nausori Town Council F.C.A. 23/86 refers).
  5. There is no need to prove conclusively a right to possession and it is sufficient for the Defendant to prove that there is some tangible evidence establishing the existence of a right or of an arguable defence. (Case No. 152 of 1987- Morris Hedstrom Ltd v Liaquat Ali refers).
  6. The Defendant does not dispute the fact that the Plaintiffs are the current registered proprietors of the said property herein.
  7. The Defendant’s contention is “whether the Defendant has a right to continue occupation of the said property?”
  8. Further, the Defendant in his defence pleaded as follows:-

“17. With respect to paragraphs 5 – 7 of the said affidavit, I admit the same and further say that I have not vacated the property due to the Plaintiffs’ actions of allowing me to live on the property and assisting me by providing me with consent to allow me to obtain the Rural Housing assistance to build my home as well as providing me with consent to obtain electricity and water supply after my home was built.

  1. The Plaintiffs actions as mentioned in paragraph 17 herein encouraged me to believe that I would be allowed to stay indefinitely on the property and as such I took steps to build my home on the property without any fear of obstruction or hindrance.”
  2. The Plaintiffs in Reply to the above Defence stated the following:-

“17. I allocated a piece of land to the defendant to build a temporary structure but not town the land. Now all they do I create problems on the land involving the police all the time, I humbly seek this Honourable Court that he vacates the property.

  1. I deny the allegation contained in paragraphs 15 to 18 and further say that I thought I was helping them out because they had given me reasons to believe that it was our mother that chased the defendant and his family out of her residence. However, when I did help them, the defendant turned his back on me and created a lot of problems along with his wife.
  2. I further reiterate that there was no point in time did I give consent for my brother to use that piece of land and give him Title nor did I ever give him any indication that I will give him the Title. Simply, my brother needed help and helped him by letter him build a temporary structure but not entirely to own the piece of land.”
  3. However, the Court notes and the fact of the matter cannot be disputed that the Certificate of Title No. 23643 being Lot 2 on Deposited Plan No. 5906 tendered into evidence as Exhibit P1 has both Plaintiffs name; Shyam Nand and Deo Chand as the registered owners of the said piece of land.
  4. Further, the First-named Plaintiff, Shyam Nand who is in joint ownership with the Second-named Plaintiff, Deo Chand, did not give his consent to the Defendant to build his house on his land. It was only the second-named Plaintiff, Deo Chand who had given his written consent on 11th November 2014 alone to the Defendant to build his house on the said piece of land. The second-named Plaintiff, Deo Chand gave his consent to the Defendant for the connection of the electricity power supply to his newly built home. Both Plaintiffs also gave the Defendant consent to the Defendant to connect the water meter and supply to his house.
  5. However, the written Consent of 11th November 2014 was subsequently withdrawn by the Plaintiffs vide written correspondence addressed to the Defendant by Shelvin Singh Lawyers on 27th July 2016. The Defendant was also given the notice to quit and deliver up vacant possession on or before the expiration of 30 days from the service of this notice and give vacant possession of the dwelling of the said property.
  6. Bearing above in mind, the basic principle is when the property is jointly owned by two or more persons, (as in this case having the Plaintiffs as two owners) every person is entitled to his share of every inch of the land unless and until the land is divided and/or partitioned in accordance to law.
  7. Therefore, it becomes necessary for the Defendant to obtain a written consent from both the Plaintiffs, Shyam Nand and Deo Chand who are the joint owners and proprietors of the said property comprised in the Certificate of Title No. 23643 being Lot 2 on Deposited Plan No. 5906 in order to build his house on their land.

Proprietary Estoppel

  1. From the Defendant’s argument and perspective hereto, it can be ascertained clearly that he is raising a Defence of Proprietary Estoppel.
  2. In his Affidavit in Opposition, he has annexed a written consent letter from the second-named Plaintiff, Deo Chand to build a house on the said land. However, the Defendant did not obtain the written consent from the first named Plaintiff, Shyam Nand.
  3. Further, it is evident from the correspondence written and addressed to the Defendant by the Plaintiffs’ Solicitors on 27th July 2016 that the written consent dated 11th November 2014 was subsequently withdrawn.
  4. However, the Counsel for the Plaintiffs submitted that the Plaintiffs are the registered proprietor of the land comprised and described in Certificate of Title No. 23643 being Lot 2 on Deposited Plan No. 5906 situated at Viwawa, Navua and not the Defendant. Therefore, the Defendant does not hold any legal rights to continue in occupation of the said land.
  5. Proprietary estoppel used to be called ‘estoppel by acquiescence’ (Lord Denning, The Discipline of Law, Butterworths, New Delhi, Aditya Books, 1993 at page 216).

In Denny v Jessen [197NZLR 635 at 639 Justicee sute summarized proprietary estoppel as follows:

"I"In Snell's Principles of Equity (27Plaimmer v Wellington Coty Corporation (1884) 9 AS 699; NZPCC 250 250 it was stated by the Privy Council that "...the equity arising from expenditure on land need not ferelyhe ground that the interest to be secured has nots not been expressly indicated." (ibid(ibid, 713, 29). After referring to the cases, including Ramsden vn (;[1866] UKLawRpHL 7; (1866) LR 1 HL 129 /u>, the opinion of the Privy Council continued, "In fact the court must look at the circumstances in each case to decide in what way the equity can be satisfied" (9 App Cas 699, 714; 250, 260). In Chal>Chalmers doe [1u> [1963] 1WLR 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] EWCA Civ 4; 2 QB 29; ; [1965] 1 All ER 446.&#160 There a sd built on land ownd owned by his father who died leaving his estate to others. Lord Denning MR, whom DanckDanckwerts and Salmon L JJ agreed, said that all was necessary;


"... is that the the licensee should, at the request or with the encouragement of the land have spent the money iney 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).

(Underline is mine)

  1. Reference is made to the case of Wilfred Thomas Peter v Hira Lal and Frasiko; HBC 40 of 2009 where Her Ladyship Justice Wati stated:

'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

  1. In order to satisfy this Court with the Four (4) conditions of the proprietary test, the Defendant has not addressed this court on every conditions hereinabove rather reiterated the same argument in general terms “that the Defendant is relying on the proprietary estoppel in terms of the written consent given to him by the second-named Plaintiff, Deo Chand to build his house on the said land. Therefore, it is as per the second-named Plaintiff’s written consent that the Defendant continued to stay on the said property and refuses to give vacant possession of the property to the Plaintiff.
  2. On the other hand, the Defendant cannot rely on the principles of equity given that he has not provided any evidence to this court of any expenditure or a mistaken belief or conscious silence on the part of the owner of the land. The Defendant as he has admitted that the Plaintiffs actions as mentioned in paragraph 17 of his Defence herein encouraged him to believe that he would be allowed to stay indefinitely on the property and as such he took steps to build his home on the property without any fear of obstruction or hindrance. Further there is no written Agreement or contract between the parties in this case for any such believe which does not comply with section 59 (d) of the indemnity Guarantee and Bailment Act.
  3. The issue then is whether any expenditure that was made by the Defendant in terms of the wages and/or work carried out on the property gives rise to create any right to the land and the Defendant to remain in continuation occupation of the subject property.
  4. It is also to be noted that there was a written consent only by the second-named Plaintiff, Deo Chand allowing the Defendant to build his house on the said land dated 11th November 2014. Further, there was a letter of consent dated 25th May 2015 to the Defendant giving consent for him to connect electricity supply. The first Plaintiff, Shyam Nand only gave a letter of consent to the Defendant to connect water supply to his house. Documentary evidence have been produced by the Defendant to this Court within his Affidavit in Opposition in terms of these consent.
  5. 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 allegedly had obtained the consent from both the Plaintiffs to build his house on the said land that he was living on or in occupation of and had any rights whatsoever to the said land whose registered proprietors were both the Plaintiffs.
  6. I find that there is no evidence in terms of knowledge on the part of the owners of the land, Shyam Nand and Deo Chand that the Defendant, Shalesh Vikash Chand in occupation of the said land had and was continuing to incur any expenditure and the owners/proprietors had nothing to stop him from doing so.
  7. The Defendant in his Affidavit in Opposition at paragraph 15 stated that “Due to the second-named Plaintiff’s given consent that he was able to apply and become eligible for the Rural Housing Programme which allowed him to build his home on the said property. Had the Plaintiffs indicated that they were merely allowing him to build a temporary structure on the said property and that when they required him, then he would need to vacate the property, he would not have applied for the Rural Housing Programme to build his house given the instability of such a proposal”.
  8. Reference is made to 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.’

  1. Section 59 (d) of the Indemnity, Guarantee and Bailment Act (Cap 232) provides;

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.’
  1. In terms of the abovementioned Act, the Defendant has clearly not complied with the above section 59 (d) of the Indemnity, Guarantee and Bailment Act (Cap 232) provision. In that, there was no agreement entered into between the Plaintiffs and the Defendant and therefore the Defendant has failed to prove the necessary premises of fact in order to found an application of the equitable doctrine of proprietary estoppel.
  2. Bearing in mind the aforesaid arguments raised by both parties to the proceedings, the Plaintiffs contention all along have been that the Plaintiffs are the registered proprietors of all that land comprised and described in Certificate of Title No. 23643 being Lot 2 on Deposit Plan No. 5906 situated at Viwawa, Navua. The Defendant is not the registered proprietor of the said land and do not hold any legal Title or legal rights to occupy the land. The written consent given by the Second named Plaintiff only and not the First named Plaintiff to the Defendant to build hid house on the said land was subsequently withdrawn by the Plaintiffs. Therefore, the Defendant’s claim as to estoppels is misconceived and none of the test hereinabove has been satisfied by the Defendant in the instant case.
  3. However, the main contention of the Defendant is that the second-named Plaintiff, Deo Chand gave him written consent that the Defendant would build a house on the said land and that the Plaintiff would get a Title for him for the money that he had paid him.
  4. The Defendant has failed to furnish Court with any agreements or other documentary written evidence in order to show to Court that the proprietors and/or owners and the Defendant did enter into any sort of agreement which would be in conformity with the abovementioned Act. Rather, it was only the alleged letter of consent signed by the second-named Plaintiff, Deo Chand that the Defendant relies on in this case to defend his case stating that as a result of that consent letter that the Defendant is entitled to continue with the current occupation of the property and not to give up vacant possession as sought for herein.
  5. Finally, the Defendant had knowledge that he had been in temporary occupation of the said property in question for a number of years only to able him to apply and become eligible for the Rural Housing Programme which allowed him to build his home on the said property from this asistance .
  6. The Defendant alleges that the second-named Plaintiff gave the consent letter to the Defendant. Yet, the Defendant did not think appropriate and important that in the said circumstances he should have made an appropriate application for a ‘Vesting Order’ and seek any legal interest and entitlement to the property in occupation, rather he thought fit and proper to continue with the occupation of the said premises in the manner that he did and is now faced with an application for vacant possession accordingly.
  7. For the aforesaid rational, I find that the property comprised in Certificate of Title No. 23643 being Lot 2 on Deposit Plan No. 5906 situated at Viwawa, Navua, in the Republic of Fiji Islands is registered both in the name of the Plaintiffs; Shyam Nand and Deo Chand accordingly. Thus, the Plaintiffs being the owners of the property in question.
  8. The defendant has failed to show any cause including a right to possession or has tangible evidence establishing a right or supporting an arguable case for such a right that must be adduced in terms of section 172 of the Land Transfer Act Cap 1971.
  9. There is accordingly nothing in section 172 which requires an automatic order for possession unless "cause" is immediately shown.
  10. Further, the Defendant has failed to satisfy this Court on the four (4) limb test for the proprietary estoppel which he raised in his Defence.
  11. Following are the Final Orders of this Court.

FINAL ORDERS

  1. The Defendant to give vacant possession of the land comprised in Certificate of Title No. 23643 being Lot 2 on Deposit Plan No. 5906 situated at Viwawa, Navua, in the Republic of Fiji Islands, to the Plaintiffs.
  2. The Defendant to deliver vacant possession to the Plaintiff in one (1) months’ time frame on or before the 04th of April, 2022 at 4pm.
    1. Execution is hereby suspended till the 04th of April, 2022 at 4pm.
    1. There will be no order as to Costs made against the Defendant at Court’s own discretion.

Dated at Suva this 04th Day of March, 2022.


............................................................

VISHWA DATT SHARMA

JUDGE


cc: Shelvin Singh Lawyers, Suva
Legal Aid Commission, Suva


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