PacLII Home | Databases | WorldLII | Search | Feedback

High Court of Fiji
You are here:  PacLII >> Databases >> High Court of Fiji >> 2022 >> [2022] FJHC 191

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Sharma v Wati [2022] FJHC 191; HBC244.2018 (29 April 2022)

IN THE HIGH COURT OF FIJI AT SUVA

CIVIL JURISDICTION


HBC244 of 2018


(On appeal from the decision of the acting Master of the High Court; Civil Action No. HBC 244 of 2018)


IN THE MATTER of an application for possession of land under section 169 of the Land Transfer Act


BETWEEN:


SACHINDA NAND SHARMA aka SUNNY
APPELLANT


AND:


NIRMALA WATI

DEFENDANT


BEFORE:
M. Javed Mansoor, J


COUNSEL:
Mr. K. Singh for the Appellant
Mr. L. Qetaki for the Defendant


Date of Hearing:
23 July 2019


Date of Judgment:
29 April 2022

JUDGMENT

LAW OF PROPERTY Appeal – Eviction proceedings – Defective summons – Whether consent of director of lands needed to file action – Meaning of phrase ‘deal with land’ – Proprietary estoppel – Order 59 Rule 16 High Court Rules 1988 – Section 169 & 170 Land Transfer Act 1971


The following decisions are referred to in this decision.

  1. Kaur v Singh [2016] FJHC 264; HBC 54.2013 (13 April 2016)
  2. Madhwan Keshwan v Keshni Devi, Shailendra R Krishna & Registrar of Titles [2007] FJCA 22; ABU 0035U.06 (23 March 2007)
  1. Nand v Kumar [2013] FJHC 266; HBC 271.2012 (1 March 2013)
  1. Mohammed Rasul Jeet Singh and Hazara Singh [1964] FijiLawRp19; [1964] 10 FLR 16 (21 January 1964)
  2. Brennan Sukhdeo and another v Avendra Narayan [2007] FJHC 142; HBC 406.2004 (7 February 2007)
  3. Mani Lal and Others v Satya Nand (1994) 40 FLR 94; [1994 ] FJHC 69; HBC 361.1993 (27 June 1994)
  4. Abdul Hamid v Hardeo Prasad [2003] FJHC 251; HBC 31d.2002S (31 October 2003)
  1. The appellant has appealed the decision of the master of the High Court made on 29 May 2019 granting vacant possession of property to the respondent together with costs.
  2. The respondent’s action was instituted by originating summons under section 169 of the Land Transfer Act 1971 seeking orders for the appellant’s eviction from the land comprised in crown lease number 714093 situate at Kings Road, Nausori.
  3. The respondent, in her affidavit in support of the application for vacant possession, averred that she and her husband, Uday Raj Singh, were joint tenants of the subject property. Mr. Singh died on 29 May 2016. She averred that she became the sole surviving tenant of the property after the death of her husband. After Mr. Singh’s death, the respondent’s brother, Mr. Ashok Prasad – who is the executor of Mr. Singh’s estate – looked after the property for the respondent. Mr. Prasad informed the respondent that the appellant had entered into a tenancy agreement with Mr. Singh to operate a car wash service on the property. She said that she was not privy to the tenancy agreement; the agreement was made unknown to her and she is unaware of its terms. The respondent averred that the tenancy agreement was entered into without the consent of the director of lands. As a result, she says, the tenancy agreement is void. She averred that the lands department and the town council have written to her concerning the appellant’s illegal tenancy. She claimed that the appellant has sublet the property, and that he was also operating an illegal garage. The appellant’s business operations, she said, were a disturbance to her and to the immediate neighbours.
  4. The respondent stated in her affidavit that she sent the appellant a demand notice dated 26 February 2018, which was served on him on 6 March 2018. The appellant responded through his lawyers by letter dated 6 April 2018. Among other matters, the appellant alleged in the letter that the respondent and her husband had failed to obtain consent of the director of lands to sublet, and that they had refused to give the appellant a letter allowing him or his tenants from obtaining a business license from the Nausori Town Council. The appellant warned the respondent that he would be compelled to initiate civil proceedings seeking inter alia loss of business earnings for the remainder of the contract term and recovery of monies spent in building the stricture. The letter also claimed that the respondent has refused to collect rent from the property.
  5. In his affidavit in opposition to the application for vacant possession, the appellant averred that he entered into a tenancy agreement on 9 January 2015 with Mr. Uday Raj Singh, the respondent’s husband. He said the respondent was aware of the tenancy agreement and submitted a letter to the Fiji Electricity Authority purportedly containing the respondent’s signature. However, the appellant said, it was not until 2018 that he was asked by the respondent and Mr. Prasad to leave the property. The tenancy agreement was valid for 10 years. He said the agreement allowed the operation of a car wash business, a tyre sale and repair centre and a service centre. The appellant disagreed that the tenancy agreement is void. He said the respondent was obliged to obtain consent to the tenancy of the director of lands. He said that he continued to pay the agreed rental of $500.00 even after the death of Mr. Singh, and that the plaintiff had recognised his tenancy.
  6. The appellant averred that he could not vacate the premises because of the duration of the tenancy as well as the amount of money he has invested in the property. He required compensation in terms of the valuation in order to vacate the premises. He said that his compensation could be assessed in a writ action, and that this action should proceed to trial. The appellant averred that the consent of the director of lands was not needed to operate his business or to obtain a business licence.
  7. By judgment dated 29 May 2019, the acting master directed the defendant to give vacant possession of the subject property together with costs in a sum of $1,000.00. Execution of judgment was stayed for 30 days. The master stated that the respondent has established a right to bring proceedings against the appellant. She observed that the appellant chose to take the risk of occupying a land under a protected lease without obtaining the consent of the director of lands. The master concluded that the tenancy agreement was invalid and the appellant could not rely on it to remain in occupation of the property.
  8. Against the master’s judgment, the applicant’s notice of appeal filed on 5 June 2019 set out the following grounds of appeal:
    1. “THAT the Learned Acting Master erred in law and fact when she failed to consider that the Respondent’s application for vacant possession was in breach of section 170 of the Land Transfer Act, Cap 131.
    2. THAT the Learned Acting Master erred in law and fact when she failed to consider that the Respondent has not obtained prior consent of the Director of Lands to initiate the proceedings which is a mandatory requirement under section 13(1) of the Crown Lands Act [Cap 132]
    1. THAT the Learned Acting Master erred in law and fact in not dismissing the Originating Summons for vacant possession of the land comprised in Crown Lease No 714093 on grounds mentioned in paragraphs 1 and 2 above.
    1. THAT the Learned Acting Master erred in law and fact when she held that the Defendant obtained possession of the land without first obtaining consent of the Director of Lands, when in-fact obtaining consent is the responsibility of the Respondent as the leaseholder.
    2. THAT the Learned Master erred in law and fact when she failed to dismiss the summons of the Respondent for vacant possession under Section 172 of the Land Transfer Act under the principal of Proprietary Estoppel.
    3. THAT the Learned Acting Master erred in law and fact when she failed to consider that the Application for vacant possession was initiated by only one lease holder namely the Respondent and there was no application by the Estate of Uday Raj Singh.
    4. THAT the Learned Master erred in law and fact in awarding costs of $1000-00 to the Respondent”.
  9. In his affidavit in support of a stay pending appeal filed on 19 June 2019, the appellant highlighted two matters in particular:
    1. “The Respondent had not obtained the consent of the Director of Lands before initiating the case in court as the property in question involved a Crown Lease; and,
    2. The Originating Summons was served within 16 days of first being called”.

In his affidavit, the appellant stated that he had made a substantial investment of more than $50,000.00 to develop the property. He undertook to pay damages should the court decide against him.


  1. The court issued an interim stay by consent of both counsel on 26 June 2019. The appeal and the application for stay pending appeal were taken up together. The main grounds of appeal urged at the hearing are considered below.

Is the summons defective?

  1. The respondent’s application for vacant possession was made as the sole surviving registered proprietor of the subject land. The appellant does not deny that the respondent is a registered owner of the property. Section 169 of the Act permits the last registered proprietor of the land to summon any person in possession of such land to appear before a judge and show cause as to why the person summoned should not give up possession to an applicant.
  2. At the hearing, the appellant submitted that the respondent’s summons was defective and was liable to be struck out as the appellant was not given the required notice of 16 days under section 170 of the Act. The section states:

“The summons shall contain a description of the land and shall require the person summoned to appear at the court on a day not earlier than 16 days”.


  1. The respondent’s originating summons filed on 17 August 2018 states that the defendant is to appear not earlier than sixteen days after the service of the summons on them. The appellant states that the respondent did not serve him the originating summons with the affidavit in support in accordance with the time stipulated by the section. He says he was served three days before the case was called in court, and that this was a breach of the statutory requirement.
  2. In support of his contention, the appellant referred to several decisions including Kaur v Singh[1], Ponu Samy v Dharam Lingam Reddy[2] and Madhwan Keshwan v Keshni Devi, Shailendra R Krishna & Registrar of Titles[3]. The appellant submitted that in a section 169 application, the technicalities are strictly construed because of the drastic consequences upon a defendant.
  3. The respondent’s originating summons directed the parties were directed to convene in court on 12 September 2018. The respondent did not file the affidavit of service of the originating summons and affidavit in support. Had the affidavit of service been filed by the respondent that would have assisted court to determine the precise date of service.
  4. When the matter came up before the master on Wednesday, 12 September 2018, it was noted that no affidavit of service was filed. The appellant was in court and admitted receiving the documents. He had received them on Monday; which was two days before the matter came up in court. The exact date of service is not in evidence. The appellant’s counsel was in court. No objection was taken regarding any defect in summons or the failure to serve summons in accordance with section 170 of the Act. The appellant wanted to file an affidavit opposing the respondent’s application. The court gave directions to file the affidavit in opposition within 14 days, and a further 7 days for the respondent’s reply. The matter was called again on 13 November 2018. On that day, the respondent was given further time to file and serve her affidavit in reply within 7 days. Parties were to file written submissions in 28 days. Hearing was fixed for 20 March 2019. These matters are evident from the master’s minutes.
  5. There is no indication that any defect in summons was brought to the master’s attention at the hearing on 20 March 2019. Written submissions were tendered on behalf of both parties. The appellant did not make submissions to the master concerning the defect in the summons due to non-compliance with section 170 of the Act. The master, in her order, did not say anything on the matter. This is because the matter concerning the summons was not raised before her.
  6. The appellant did not object to the defect or irregularity in the summons when he first had the opportunity to do so on 12 September 2018. There is no evidence he did so at any subsequent stage in proceedings before the master. The grounds of appeal make no mention of the claimed defect in the originating summons except for a general assertion – in its first ground of appeal – that the respondent’s application for vacant possession was in breach of section 170 of the Land Transfer Act. It was only in the subsequently filed affidavit in support of the stay application that the objection is specifically stated. Even in this affidavit the appellant does not specifically state the date on which he was served the summons. It would seem that the appellant did not think much of the failure to serve summons as required by the statutory provision.
  7. In my view, no prejudice was caused to the appellant by failure to observe the 16 day period referred to in section 170 of the Act. There was sufficient time from the day on which the parties were first convened by the originating summons i.e: 12 September 2018, to the date of hearing i.e: 20 March 2019. There was approximately six months to show cause at the hearing. The time given to the appellant to show cause is far more than what is intended by the statute’s summary process. In addition to opposition by affidavit, the appellant was afforded the opportunity of making oral submissions and filing written submissions. The appellant has no reason to complain of an inadequate hearing before the master.
  8. By his conduct, the appellant has waived his right to object to any defect in the summons. He is not entitled to raise the matter for the first time before this court having remained silent at the show cause hearing before the master. In these circumstances, it will not be just for this court to intervene in the matter.
  9. Although neither party made mention of it, the court is entitled to hold this view in terms of section 2 (1) of the High Court Rules 1988 which states that an application to set aside for irregularity any proceedings, any step taken in any proceedings or any document, judgment or order shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.

Is consent by the director of lands a requirement for action to be filed?

  1. The parties named in the crown lease are the director of lands – as lessor – and Uday Raj Singh and Nirmala Wati – as lessees. After Mr. Singh’s death, his half share of the tenancy was registered under the name of his estate’s executor – Mr. Ashok Prasad – on 15 November 2016. The lease instrument, dated 1 December 2008 and registered on 2 January 2009, contains a clause stating:

“It is expressly declared that this lease is a protected lease under the provisions of the Crown Land Act.”


  1. The appellant submitted that section 13(1) of the Crown Lands Act (now known as the State Lands Act) requires the written consent of the director of lands before instituting legal proceedings on a land that is classified as a protected lease. Section 13 (1) of the State Lands Act (previously the Crown Lands Act) prior to being amended by the State Lands (Budget Amendment) Act of 2021 stated:

“(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 called a protected lease) it shall 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”.


  1. The respondent submitted that it was not necessary to obtain the consent of the director of lands prior to filing action. The decision in Mohammed Rasul v Jeet Singh and Hazra Singh[4] was cited in support of the respondent’s contention. In that case, Hammet, acting CJ, referring to section 13 (1) of the Act expressed the view that consent of the director of lands could be obtained up to any time before the land is actually dealt with by the court. The court stated,

“I can also see no reason why a Judgment of the Court dealing with the land could not properly be made “subject to the consent of the Direcor of Lands, with liberty to apply for further orders should that consent not be granted”.


  1. In Brennan Sukhdeo and another v Avendra Narayan[5], the High Court held that simply filing action in court did not amount to dealing in land, and that actions can be discontinued at any time before orders are made. The court, having made reference to Mohammed Rasul, explained that dealing with a land occurs if the orders or judgment of a court in some way affects some interest of the lessee in the land. The court stated that prior consent of the director is confined to transferring, alienating, mortgaging or charging etc., and that it did not extend to filing actions in court. The court declared that there is nothing in the section which requires one to obtain the consent of the director before an action is filed in court, and that such consent could be obtained at any time before the land is “dealt”& by court.
    <
  2. The decisions in Mohammed Rasul and Brennan Sukhdeo are authority that thet there is nothing in the express wording of Section 13 (1) of the Act which makes it necessary to obtain the consent of the director of lands before an action for possession of a property under a protected lease is initiated. op

Proprietary estoppel

  1. The appellant submitted that the respondent’s husband entered into a tenancy agreement with him, and that, therefore, he was entitled to remain on the property. In support of his argument, the appellant referred to the principles discussed by Denning J in Central London Property Trust Ltd v High Tree House Ltd[6]. He and also cited several local authorities, among them Nand v Kumar[7].
  2. The appellant contends that from 2015 the respondent and her husband had remained silent without informing him of their intention to evict him. He did not know of the respondent’s intention to do so until 2018, when he was served with notice to vacate the property. As a result, the appellant says, he made a substantial investment in excess of $50,000.00 after the property was rented out to him by the respondent’s husband.
  3. The authorities have established that there must be an expenditure, a mistaken belief, a conscious silence on the part of the owner of the land and that there must not be a bar to relief in equity in order to succeed on the basis of proprietary estoppel. In Nand v Kumar[8], Amaratunga J stated that liabilities must not be forced upon people behind their backs.
  4. Snell’s Equity states that proprietary estoppel is a qualification 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[9]. The author states that 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[10].
  5. The respondent states that she has been advised by the land department that they may cancel her lease unless the appellant gives vacant possession of the property. The Nausori Town Council has informed her that the appellant was operating the business illegally as he has not been issued with a business licence to operate his business, Sunny’s Car Wash. She and her brother, Mr. Prasad, she said, have brought this to the attention of the appellant on numerous occasions. She said that the appellant has also started to operate a garage illegally on a part of the property. These operations, she said, were disturbing her and her immediate neighbours.
  6. A letter dated 16 June 2017 from the Ministry of Lands and Mineral Resources sent on behalf of the director of lands to Mr. Ashok Prasad stated that there was a breach of clause two of the lease agreement. The respondent was put on notice that the land would be taken or that a penal rent would be imposed at the discretion of the Minister. The letter said the matter would be reviewed, and would “proceed further” unless the breach is rectified.
  7. By letter dated 28 December 2017, the Nausori Town Council informed the respondent that it had not issued a business licence to Sunny Car Centre. The council stated that the business licence would be given upon consent by the Lands Department, Ashok Prasad (administrator) and the respondent. The council alleged that the appellant was operating the business illegally.
  8. By letter dated 26 February 2018, the respondent’s solicitors sent the appellant a notice to quit calling upon the appellant to vacate the premises within 30 days and for settlement of unpaid rent in a sum of $7,000.00. The appellant did not vacate the premises. The respondent filed this action on 17 August 2018 seeking vacant possession of the property.
  9. Both parties state that the consent of the director of lands was not obtained before the tenancy agreement was entered into between the appellant and Mr. Singh. The appellant states that clause 2 of the crown lease stipulated that the lessee shall not transfer, sublet, assign, mortgage or part with the possession of the demised land or any part thereof without first obtaining the written consent of the lessor. The page containing this clause of the agreement is not to be found in the court’s record. The respondent has not denied the existence of this clause. The contention of the appellant is that in view of this clause the respondent and her husband should have obtained consent for his tenancy.
  10. In Mani Lal & others v Satya Nand[11], Byrne J said:

“If the Defendant proceeded to erect a building on the land either knowing that the Director of Lands has not given his consent or oblivious to the lack of such consent he cannot hold against the Plaintiff”.


  1. Both parties were aware that the consent of the director of lands was not obtained either before or after the tenancy agreement was entered into. The respondent is not a party to the tenancy agreement. The master has determined that the parties to the tenancy agreement did not comply with section 13 (1) of the Act. There is no reason to disturb this finding.
  2. In these circumstances, the appellant cannot resist the respondent’s claim for vacant possession of the property by claiming in this action that he had rights to the property by his labour and investment to develop the land. It is open to the appellant to establish those claims by separate action. It must be said that even if a separate action related to the land had been filed by the appellant it would not necessarily have been a bar to proceeding with this application[12]. In proceedings before the master, it was for the defendant to show cause why he should not give up possession. He has not done so to the master’s satisfaction.
  3. Another ground urged by the appellant is that the land was wrongly described in the summons. If this is so, it will be a concern for the respondent, and not for the appellant. It was also urged that the respondent’s application should have been made by the executor as well. This objection was never taken before the master. As a registered proprietor the respondent was competent to take proceedings to evict an occupant. The appellant has not succeeded on any of his grounds of appeal.

ORDER

  1. The appellant’s appeal is dismissed.
  2. The stay order issued by consent on 26 June 2019 is dissolved.
  1. The appellant is directed to pay the respondent costs summarily assessed in a sum of $ 1,500.00 within four weeks of this judgment.

Delivered at Suva this 29th day of April, 2022


M. Javed Mansoor
Judge


[1] [2016] FJHC 264; HBC 54.2013 (13 April 2016)
[2] FijiLawRp 26; [1996] 42 FLR 160 (12 September 1996)
[3] [2007] FJCA 22; ABU 0035U.06 (23 March 2007)
[4] [1964] FijiLawRp19; [1964] 10 FLR 16 (21 January 1964
[5] [2007] FJHC 142; HBC 406.2004 (7 February 2007)
[6] [1947] I KB 130
[7] [2013] FJHC 266; HBC 271.2012 (1 March 2013)
[8] [2013] FJHC 266; HBC 271.2012 (1 March 2013)
[9] 29 ed., Sweet & Maxwell, pages 573 - 575
[10] Page 576 ibid
[11] (1994) 40 FLR 94; [1994] FJHC 69; HBC 361.1993 (27 June 1994)
[12] Abdul Hamid v Hardeo Prasad [2003] FJHC 251; HBC 31d.2002S (31 October 2003)

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2022/191.html