Prasad v Chand [2001] FJLawRp 31; [2001] 1 FLR 164 (30 April 2001)

INDAR PRASAD & BIDYA WATI v PUSUP CHAND

High Court Civil Jurisdiction

8 December, 1999, 30 April, 2001

HBC 0384/99L

landlord and tenant – eviction proceedings – revocation of invitation to occupy – whether Director of Lands' consent necessary to ejectment proceedings - Land Transfer Act ss169(c), 171; High Court Rules O.113 r.3; State Lands Act s13, 32, 40; Native Lands Trust Act ss12, 26 & 27; Subdivision of Land Act s4(b), 15

The Plaintiffs, as Trustees and Executors of the estate of their late father, claimed the Defendant was a trespasser but their solicitors issued a notice to the invitee to quit occupying a quarter acre land. The Defendant claimed that he was invited by the Plaintiffs' late father and the first named Plaintiff to occupy the land until a subdivision was complete, and on the strength of that promise built a 3 bedroom house. The Plaintiffs instituted proceedings under O.113 HCR to evict the Defendant. The Defendant claimed that there should be revocation of an invitation to occupy before giving notice to quit. The Court found there need not be a two stage process. The Defendant had shown no evidence of any memorandum in writing, or of any consideration for the promise or gift, and no suggestion that rent was paid meanwhile pending subdivision. His occupation was unlawful for lack of Director of Land's consent. The Court found that the Defendant had not raised any equitable exceptions to remain in occupation, and vacant possession was granted.

Held-(1) Where the Defendant is an invitee to occupy land, it is not necessary that there should be two stages to eviction – service of revocation and then notice to quit. It would be sufficient if both were given together.

(2) Director of Lands' consent is not necessary to institute proceedings for ejectment under Land Transfer Act section 169 of a mere occupier without lease as the lease is not a dealing with land, and the occupier has no title.

(3) An affidavit in support in HCR O.113 proceedings need not show evidence of a prior notice to quit if there is no right to occupy the land and the Defendant is not a former tenant. A notice to quit need not be served or proved to found jurisdiction.

(4) There is no requirement that at the time of issuing a Notice to Quit the subsequent Applicants must be noted on the title as registered proprietors, where they are Trustees and Executors of the estate of their late father. They came within section 169(a) in that they were then authorised to summon the occupier to show cause.

(5) State Lands Act section 13 appears to be a complete bar to any equitable estoppel arising in the Defendant's favour. He has not shown that he comes within any equitable exceptions.

Order for vacant possession granted.

[Note: This case is reviewed in the Legal Lali Vol IV No. 1 p.42 June 2001]

Cases referred to in Judgment
Ref Abdul Aziz v Kapadia & Anor [1978] FCA Civ App 53/78 30 November 1978
dist Badal & 2 Ors v Bhim Sen [1978] FCA Civ App 49/77 22 March 1978
Cons Chalmers v Pardoe [1903] 3 All ER 552
dist Gurdial Singh v Shiu Raj [1982] Civ. App. 44/82 30 November 1982
dist Lawlor v Timoci Duaibe (1976) 22 FLR 134
dist Lila Wati, Raj Pal & Madan Pal as Executors and Trustees of the Estate of Ram Pal v Alitia Vakaraubula (1994) 40 FLR 107
Cons Long v Castle [1924] SAStRp 32; [1924] S.A.S.R. 255
Foll Parvati Narayan v Suresh Prasad [1997] HBC 0275/96L 15 August 1997
Cons Phalad v Sukh Raj (1978) 24 FLR 170
Foll Ram Devi v Satya Nand Sharma & Anor. (1985) 31 FLR 130
appl Ram Lochan Regan v Satya Nand Verma (1965) 11 FLR 240
Cons Ram Narayan v Moti Ram [1983] ABU 16/83 28 July 1983
dist Ramesh v Manji Jadavji & Ors [1982] SC Civ Action 226/81 26 August 1982.
dist Sheila Maharaj v Jai Chand [1986] 1 AC 898
Foll Shyam Lal v Eric Martin Schultz (1972) 18 FLR 152
Foll Vallabh Das Premji v Vinod Lal & Nanki and Koki [1975] FCA 70/74 17 March 1975

Haroon A Shah for the Plaintiffs
Vipul Mishra for the Defendant

30 April, 2001

JUDGMENT

Gates, J

The Plaintiffs have a State Lease over 12 acres of sugar cane land. The Defendant occupies a quarter acre of it. The parties fell out. The Plaintiffs complained to the police of roadblocks being erected by the Defendant on an access road. The Defendant says he was invited onto the land 30 years ago by the Plaintiffs' father and by Indar Prasad, the 1st named Plaintiff. He says he was given a piece of land, a boundary was marked out, and he was promised that necessary sub-division would be done. Relying on that promise, the Defendant went and built a 3 bedroom house on the land. This is denied by the Plaintiffs. They say the Defendant has been a nuisance, and that his conduct has interfered with their peaceful enjoyment of the land. The Plaintiffs now seek to eject the Defendant.

On 13 October 1999 the Plaintiffs filed a summons together with an affidavit in support seeking an order for vacant possession. Owing to an error, judgment was originally obtained by default. In time, this was set aside. The matter then came on for hearing. Before the court were 2 affidavits from the Plaintiffs and two from the Defendant.

The proceedings are brought under section 169 of the Land Transfer Act Cap. 131. This is a summary procedure in which the High Court exercises a special jurisdiction under Part XXIV of the Act. The Defendant must show cause to a judge's satisfaction as to why he should not give up possession to the Applicant.

Need the Plaintiffs prove that the Director of Lands consented to the institution of these proceedings?

This is, of course, a different question from that of whether the occupier occupied the relevant State Lease without the prior consent of the Director of Lands. I shall deal with that question later. Order 113 of the High Court Rules which provides for summary proceedings for possession of land does not specify the need for proof of consent for the institution of proceedings for ejectment, nor does the State Lands Act Cap. 132. The lease was originally a Crown Lease granted to the late Mr. Ram Nath, the first proviso of which stated the lease was to be "a protected lease under the provisions of the Crown Lands Act."

The relevant part of Section 13 of that Act, which provides certain safeguards for protected leases, states:

"... 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,..." (underlining added)

Section 171 of the Land Transfer Act provides:

"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." (underlining added)

At first sight, both sections would seem to suggest that an Applicant should first obtain the Director's written consent prior to the commencement of section 169 proceedings and exhibit it to his affidavit in support. However I favour Lyons J.'s approach in Parvati Narayan v Suresh Prasad (unreported) Lautoka High Court Civil Action No. HBC0275 of 1996L 15th August 1997 at p 4 insofar as his Lordship found that consent was not needed at all since the:

"section 169 application (which is the ridding off 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. The court is 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 appears to acknowledge that the 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.

It is not appropriate to deal now with the many and various applications under section 169 where the Director's consent might be required prior to the institution of proceedings. In the past the Director's consent to institution has often been proved to the court, see Ram Lochan Regan v Satya Nand Verma [1965] Fiji LR 240 at 242E where the Director's consent was obtained prior to the application to evict a statutory sub-tenant of a Crown Lease supervening after a monthly tenancy. I find it is not necessary to prove the Director of Lands has given his consent to the institution of proceedings for ejectment of a mere occupier without lease.

The Notice to Quit

In his affidavit in support sworn on 6th October 1999, Indar Prasad said: "I have on many occasions demanded that the Defendant vacate the said property but he refuses to do so...". He exhibited a letter written to the Defendant by the Plaintiff's previous solicitors dated 26th August 1998. This letter is headed "Notice to Vacate". The solicitor said he was writing "as solicitors for Mr. Indar Prasad and Mrs. Bidya Wati the Executors and Trustees of the estate of Ram Nath". The full text is as follows:

"We act as Solicitors for Mr. Indar Prasad and Mrs. Bidya Wati the Executors and Trustees of the Estate of Ram Nath and our instructions are as follows:

(a) Our clients are the Trustees and absolute beneficiaries of Crown Lease No.5989.

(b) That you are residing on a quarter acre of the said Crown Lease as an invitee but without the prior consent of the Director of Lands first had and obtained.

(c) That due to your conduct whereby you have become a nuisance our clients now ask that you vacate the Crown Lease within twenty eight (28) days and any permission for your occupation is revoked.

(d) That whilst vacating you should remove all the improvements carried out on the property by you.

TAKE NOTICE that failure to vacate will result in High Court action and this will only result in unnecessary legal costs."

In his affidavit sworn on 17 November 1999 the Defendant admits having received such a Notice. He said his solicitors replied to it by their letter of 12 September 1998, referring to the fact that the Defendant, their client, had in turn referred it to them for reply. The Defendant claims that it was necessary for the Plaintiffs to have first revoked the invitation to occupy.

The letter giving Notice did refer to the Defendant's status on the quarter acre as an invitee (para. (a)). However it is not necessary that there should be two stages to the eviction, that is first the service of a revocation and then a Notice to Quit. It would be sufficient if both were given together. The letter of 20th August 1998 was sufficient notice for the purposes of revocation and for the Notice to Quit.

It is suggested also that the Notice was insufficient. In Ram Lochan Regan (supra) at p 244F Marsack VP said:

"As is stated in Foa on Landlord and Tenant 7th Edn., p. 598, para. 964:

"No particular form is requisite for a notice to quit. The notice must:-

1. be addressed to the right person,

2. properly describe the premises to which it relates,

3. be plain and unequivocal and

4. expire at the proper time."

There is no doubt that the notice under review is addressed to the right person, and properly describes the premises. It has not been contended that it does not expire at the proper time. Can it be said that it is not plain and unequivocal?"

The Notice in the instant case provided sufficient details also.

Mr. Mishra for the Defendant complains that there is insufficient evidence of date of service of the Notice. It is correct that the date of service in a lease case should have been proved satisfactorily in the affidavit. In this case, the Defendant's solicitors replied on 12 September 1998 to the Notice that they were handed by their client. No complaint was made by the solicitors that there was ambiguity over the date by which the client was to vacate, nor did they request more time because of short service. Additionally, if it were assumed that the Defendant only received the Notice on the day his solicitors replied to it 12 September 1998, 28 days further on would be approximately 10 October 1998. Proceedings for ejectment were not instituted till a year later, on 13 October 1999, when the Defendant was still occupying the land. I find there was no uncertainty over the date required for vacation of the land. I find the evidence of the Plaintiff adequate in this regard taken with that of the Defendant, bearing in mind that the burden of satisfying the court is on the Defendant. In Vallabh Das Premji v Vinod Lal & 2 Others (unreported) FCA Civil App. No. 70 of 1974 17 March 1975 at p 130 Gould VP said:

"Proof of service of a notice to quit on a date when it will, according to its terms, be effective to terminate the tenancy, is essential to the jurisdiction of the court, in a case of this nature, to make the ejectment order applied for."

The present case however does not concern a tenancy. On the Defendant's evidence it is claimed there was a gift of part of the Plaintiff's State lease or at the least an invitation to occupy. Order 113 procedure is appropriate for ejectment proceedings where the land "is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent...". The affidavit in support in such cases does not have to provide evidence of a prior Notice to Quit. After all, if no right to occupy the land is shown to the judge and the Defendant is not a former tenant, it is doubtful whether a notice to quit need be served or proved in order to found jurisdiction [see Ord. 113 r.3, and section 169(c) Land Transfer Act]. Solicitors will no doubt continue to serve Notices to Quit in all cases as a matter of clarity and of caution. As was said in Vallabh Das Premji (supra) at 131 "each case must depend on its own facts and circumstances." Had this application involved the termination of a lease, the lack of proof of the date of service of a Notice to Quit would have proved fatal: Vallabh Das Premji at 132, followed in Abdul Aziz v Kapadia & Anor. (unreported) FCA Civil Appeal No. 53 of 1978 30th November 1978 at p 5.

Lastly, it is said of the Notice to Quit that it was issued on behalf of the Plaintiffs before they were noted on the title as the registered proprietors. The Notice was issued on 26th August 1998 and the Plaintiffs were not noted on the title till 27th August 1999. Proceedings were filed afterwards on 15 October 1999. On 1st April 1973 Crown lease No. 5989 had been granted to Ram Nath, the father of both Plaintiffs. On his death the Plaintiffs became the Executors and Trustees of his estate. They were clearly acting in the interests of the estate and appropriately as Trustees in causing a Notice to Quit to be issued. At the time proceedings were instituted the Plaintiffs were then the last registered proprietors of the land, and therefore they came within section 169(a) in that they were then authorised to summon the occupier to show cause. There is no requirement that at the time of issuing a Notice to Quit the subsequent Applicants must then be noted on the title as the registered proprietors.

The Facts

It is argued for the Defendant that this is not a suitable case for summary proceedings. It is said the facts are complicated and in dispute. I do not accept that. Some facts are in dispute, but those that are of importance for the determination of this matter are not significantly challenged. Shyam Lal v Schultz [1972] 18 Fiji LR 152 at 154; of Ram Devi v Satya Nand Sharma & Anor. [1985] 31 Fiji LR 130 at 135A.

Indar Prasad, the first named Plaintiff appears to deny in his supplementary affidavit sworn on 26th November 1999 that either his father or himself, "at any stage invited the Defendant upon the said land." Yet the solicitors for the Plaintiffs in their Notice to Quit have referred to the Defendant as "an invitee". This Notice was exhibited to Indar Prasad's first affidavit in which he had referred to the Defendant as "a trespasser." The Plaintiffs do not explain the circumstances in which the Defendant arrived on the land as either an invitee or a trespasser. On this evidence I find that the Defendant has been on the land for some time. On the other hand, the Defendant has failed to explain why he was promised to be "given" the quarter acre of land. There is no evidence of any memorandum in writing, or of any consideration being given for the promise or gift, and no suggestion that rent was paid meanwhile pending subdivision. The burden of satisfying the judge of the right of possession is on the Defendant. If he fails to discharge that burden he will suffer an order of ejectment; and if so and in order to regain rights of occupation or possession he will be left with the remedy of proceeding by way of writ and Statement of Claim.

Neither party assert that the Director of Lands consent was sought before or after the occupation by the Defendant.

Lack of Director's Consent and estoppel

Section 13 of the State Lands Act prohibits any dealing in land which is comprised in a State Lease, without the Director of Lands' consent. Whatever the nature of the permission granted to the Defendant to occupy the relevant State land, it was clearly unlawful because it lacked the Director's consent. The Defendant would have committed the criminal offence of trespass on State Land under sections 32 and 40 of the Act. Unlawful occupation of Native land is similarly an offence under section 27 of the Native Lands Trust Act Cap. 134 and other breaches of that Act are caught by section 26. Section 12 of NLTA is couched in similar language to that of section 13 of the State Lands Act.

If I were to accept all of the Defendant's evidence unchallenged by the Plaintiffs, the Defendant fails to satisfy me that he has a right to possession. Apart from the paucity of evidence on the agreement with the Plaintiffs' deceased father, the agreement itself falls foul of the statutory prohibition on dealing with State leases. The Defendant has gone into possession and built a house without the consent of the Director of Lands. The Director has had no prior opportunity to evaluate the Defendant as a suitable tenant of the State, the very purpose for the consent provision. Any gift or promise to subdivide and to grant part of the State Lease to the Defendant would be null and void in these circumstances. It would also be in breach of section 4(b) of the Subdivision of Land Act Cap. 140 and therefore an offence under section 15 of that Act; see generally in relation to Native Leases: Chalmers v Pardoe [1903] 3 All ER 552 PC; Phalad v Sukh Raj [1978] 24 Fiji LR 170; Ram Narayan v Moti Ram (unreported) FCA Civil Appeal 16 of 1983; 28 July 1983 and for Crown Lands see Long v Castle [1924] SAStRp 32; [1924] SASR 255.

In Sheila Maharaj v Jai Chand [1986] 1 AC 898 the Appellant was held to have "a personal right not amounting to a property interest" to reside in the house on the native lease. She had lived with the Respondent and had used her earnings to pay for household needs, and she looked after the Respondent, her de facto husband, and the children as wife and mother. Sir Robin Cooke, in delivering the Privy Council's decision, concluded (at 908E):

"The appeal raises no question regarding the Plaintiff's ability to assign the sublease. In any event that is subject to the control of the Native Land Trust Board under section 12.

Their Lordships add the caveat that they are far from saying that whenever a union between an unmarried couple comes to an end, one who is the sole owner in law and equity of the property hitherto their home should not be able to obtain an order for possession against the other. It is the particular combination of facts which has led to the estoppel in the present case."

Similarly, personal rights to remain and occupy, over freehold land, were found in Gurdial Singh v Shiu Raj (unreported) FCA Civil App. No. 44 of 1982; 30th November 1982; and in Lila Wati and 2 Others v Alitia Vakaraubula [1994] 40 Fiji LR 107. After trial on oral evidence, Williams J. in Ramesh v Manji Jadavji & Others (unreported) Lautoka Supreme Court Civil Action 226 of 1981 26 August 1982 said at p 6:

"The firm had been in occupation as annual sub-tenants for 45 years up to entering the fresh lease ex.p. 7 in 1976. The law will not presume that such occupation was unlawful and it is for the Plaintiff who alleges illegality to plead and prove facts in support of the allegation."

And further on:

"However, the Defendant was not let into possession under Ex.P. 7; he was already in possession and there is no evidence of any other act arising under the agreement Ex.P. 7 which comes within the transactions prohibited under section 12."

The Court found that possession of the native lease had always been with prior consent. Possession could lawfully continue whilst the new lease was granted the necessary consent. Mr. Mishra referred me also to Badal & 2 Others v Bhim Sen (unreported) FCA Civil App. No. 49 of 1977; 22 March 1978 where the Court of Appeal upheld the trial judge in finding an equitable estoppel. The Plaintiff had built on the land and expended money in the mistaken belief that he was entitled to do so without any intervention by the owner to assert his rights. This was of course over freehold land, where no consent was required. In Lawlor v Timoci Duaibe [1976] 22 Fiji LR 134 the Defendant was said to be a licencee by contract since the Plaintiff had signed a settlement agreement to allow the Defendant to remain on part of the freehold land till his death. The court found that equity could protect such a licence, and therefore the eviction failed.

Section 13 of the State Lands Act would appear to be a complete bar to any equitable estoppel arising in the Defendant's favour. I am not satisfied on the Defendant's evidence that he comes within any of the equitable exceptions or that he has a right to possession. Accordingly I grant the order for vacant possession with costs for the Plaintiff of $300.

Application granted.

Marie Chan