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IN THE SUPREME COURT OF FIJI
AT SUVA
ON APPEAL FROM THE FIJI COURT OF APPEAL
CIVIL APPEAL NO. CBV 0003/97
(Fiji Court of Appeal Civil Appeal No. ABU0070/95)
BETWEEN:
:
RAM SWAMY
ADI NARAYAN
Appellants
AND:
PADMA WATI
Respondent
Coram: The Sir TimocTimoci Tuivaga, President
The Rt. Hon. Lord Cooke of Thorndon
The Hon. Sir Anthony Mason
Hearing: 12 March, 1998
Judgment: ........ M 1998
Counsel: Mr. C. B. Young for the Appellants
s
Mr. H.A. Shah for the Respondent
JUDGMENT OF THE COURT
This appeal arises out of a dispute over title to land. The respondent claims that the appellants are living on land to which she
has title. In proceedings instituted by the respondent, Sadal J. made an order that the appellants deliver vacant possession of land
occupied by them to the respondent. An appeal by the appellants from that order was dismissed by the Court of Appeal (Casey, Ward
and Hillyer JJA).
The judgment of Sadal J. was largely directed to rejecting the appellants’ claim that they had title to the land which they were
occupying. Having rejected that claim, His Lordship went on to hold that the appellants were occupying land to which the respondent
had title.
In the Court of Appeal, Mr Young for the appellants conceded that he could not maintain that his clients had any legal title to the
land they were occupying. He did, however, submit that there was doubt whether the respondent’s lease embraced the land occupied
by the appellants and contended that, in such a situation, their possession gave them a good title as against he respondent. The
Court of Appeal held that the submission could not overcome the finding by Sadal J. that the respondent had title to the land under
occupation by the appellants. The Court of Appeal noted that Mr Young did not press the jus tertii submission and relied mainly on
the principle of estoppel.
In this Court Mr Young has pressed the jus tertii submission and has relied on acquiescence which we understand to be the argument
referred to as estoppel in the courts below. In addition, Mr Young has argued that there was no evidence to support the finding by
Sadal J. that the land occupied by the appellants was situated within the respondent’s lease and that Sadal J. failed to deal
with jus tertii submission.
The relationship between the parties and their association with the land
The appellants are two of the sons of Shiu Narayan, now deceased, who was the first defendant in the action. Shiu Narayan was related
to the respondent’s father, Viraiya.
According to the facts found by the primary judge, Shiu Narayan was invited by Viraiya to live on land occupied by Viraiya. Shiu Narayan
built a bure on the land. The bure was destroyed in a hurricane in the 1960s. Shiu Narayan then built a concrete house on the land.
It seems that the respondent did not object to the building of the house. The appellants lived in the house uneventfully until August
1982 when the appellants ploughed or caused to be ploughed 3 square chains of land on which the respondent claims to have been growing
sugar cane ratoon. The appellants claimed that the area ploughed was a vegetable garden forming part of land owned by Shiu Narayan
deceased. The ploughing of the land and the subsequent dispute resulted in the respondent instituting the proceedings out of which
this appeal arises.
It was established to the satisfaction of the primary judge and it is not now contested that the respondent is the lessee of Native
leasehold land known as Qeleloa C/N 2443 The land was formerly owned by Colonial Sugar refining Co. Ltd. The respondent’s father
was a tenant of that company. The Native Land Trust Board ("the Board") assumed control of the lease in 1970 when it was occupied by the respondent’s mother. The Board issued an Approval Notice to
the mother. The term of the lease was initially for 10 years from 1 January 1971. The respondent presently holds an extension of
the lease for 20 years from 1 January 1981 under the Agricultural Landlord and Tenant Act. The respondent holds Cane Contract No. 2443 in relation to the land. Although the Board has not surveyed the land, the records of
the Board are to the effect that the area of the lease is 9.5 acres (more or less).
The Trial
The appellants’ main case at the trial was that the land on which the concrete house stood and the vegetable garden formed part
of a block known as marginal Lot 28 comprising 5.5 acres which Shiu Narayan deceased had owned and that Lot 28 was adjacent to the
respondent’s land. The primary judge had no hesitation in rejecting this defence as the evidence established that Lot 28 was
a substantial distance away from the respondent’s land and that it had been sold by Shiu Narayan to one Subramani.
Evidence was given by Joseph Rakai, an estate officer with the Board, that the appellants hold no leases of land in the relevant area.
Furthermore, evidence was given by two witnesses, Armugam and Subramani, evidently without objection, that the concrete house was
situated on the respondent’s land. Moreover, Joseph Rakai, when shown a plan, of Cane Contract No.2443, the respondent’s
contract, stated that it was a map of the land in dispute. He went on to say "It is map of land in dispute. It shows land of plaintiff. It shows Lot 29." Lot 29 is the site of the Qeleloa Temple, adjacent to the respondent’s land. The plan shown to Rakai unquestionably includes
the area in dispute. Although the plan bears no date, it is a survey plan and it assigns an area of 4.851 hecares (11.9 acres) to
the Contract land. It is therefore not surprising that the primary judge found as a fact that the appellants were living on the respondent’s
land.
Sadal J. did not make an express finding that the vegetable garden was on the appellants’ land. As the evidence was that the
vegetable garden was adjacent to the concrete house and the witnesses spoke of the house in which the appellants were living, there
can be little doubt that His Lordship’s finding was intended to relate to the house and the garden. The Court of Appeal accepted
that finding and treated it as disposing of the case, apart from the issue of estoppel or acquiescence.
The Jus Tertii Argument
Sadal J. did not address the jus tertii argument, no doubt because he considered that his finding that the house was on the respondent’s
land gave no scope for the argument, a view shared by the Court of Appeal.
It is convenient at this point to deal with Mr Young’s arguments. We have already refuted his first submission that there was
no evidence to support the finding that the appellants were living on the respondent’s land.
Mr Young’s second submission raises the just tertii ground. The foundation for this submission is that the area of the respondent’s
lease as shown in the records of the Board’s extension of the lease 9 acres 1 rood 8 perches. This foundation is infirm in that
the Board’s extension dated 12 May 1982 of the respondent’s lease for 20 years stated the area of 9 acres 1 rood 8 perches
is "estimated" only and is subject to survey. Elsewhere in evidence the area is referred to as 9.5 acres 9 (more or less). And, as the Board made
no survey, it is clear that the areas stated should not be regarded as accurate. The next step in the argument is that, according
to a survey made in 1985 by Ami Chand, a witness called for the appellants, the respondent was occupying 10 acres 2 roods 9 perches,
while the appellants had a house site comprising 3 roods 8.9 perches and a vegetable plot comprising 1 rood 12.8 perches.
Sadal J. did not refer to this aspect of the survey in his reasons for judgment. As we have already pointed out, His Lordship appears
to have concluded that the areas in dispute fell within the area of the respondent’s lease because there was no significant
evidence of a competing title, the appellants’ claim of title was baseless and the evidence of witnesses referred to the appellants
living on the respondent’s land. Moreover, although he did not refer to the Cane Contract No. 2443 plan, identified by Rakai,
His Lordship may well have considered that it reinforced the view that the respondent’s lease extended over the lands in dispute.
In the light of the evidence as we have related it, we consider that the Court of Appeal was justified in concluding that on the primary
judge’s findings of fact, there was no scope for the jus tertii argument because the respondent established a title over the
lands in dispute. It follows from what we have already said, that the fact that Sadal J. did not explicitly address the jus tertii
argument is not a reason for allowing the appeal as Mr Young submitted it should be.
Acquiescence and estoppel
That leaves for resolution Mr Young’s final submission that the appellants had a good defence of acquiescence. This defence was
rejected by the primary judge, though the grounds of rejection are rather exiguous. It appears that His Lordship considered that
the absence of consent by the Board was an obstacle to the appellants’ success. The Court of Appeal’s rejection of the
defence is contained in the penultimate paragraph of the judgment which is expressed in these terms:
"Even if it could be held that by building a house on the land held by Padma Wati, Shiu Narayan obtained a right to occupy the
house it could not be held that that gave Shiu Narayan’s sons or any of them or their children a personal right to occupy the
land or grow vegetables on it."
The defence of acquiescence can have no application to the vegetable garden. There was neither expenditure nor any act done by way
of improvement of that land which would provide a foundation for a successful application of the principle of acquiescence or estoppel.
The relevant principle in its application to acts done with respect to land is that a court will protect a person who expends money
on another’s land in the expectation, created or encouraged by the owner, that he is to have an interest in it, or a person
who expends money on another’s land in the belief that he has an interest in the land and the true owner knows of the mistaken
belief and the expenditure (Halsbury’s Laws of England 4th ed. Vol. 16 para. 1475; Ramsden v. Dyson (1866) LR 1 JL 129 at 140, 170; approved in Plimmer v. Mayor of Wellington (1884) 9 App. Cas. 609 at 713; Kirby v. Cowderoy [1912] UKLawRpAC 36; (1912) A.C. 599.
The protection may take the form of confirming the person’s supposed title or by the provision of compensation for the person’s
outlay or by giving him a charge or lien. In the present case the appellants argue that acquiescence should result in the confirmation
or, more accurately, the acquisition of title because nothing less would provide them with a defence to the respondent’s action.
If the parties’ arrangement gave rise to no more than a personal right in Shiu Narayan deceased it would be of no avail to the
appellants.
In other words, the appellants contend that the circumstances give rise to something more than a personal right on the part of Shiu
Narayan deceased to live in the house for his life. Their argument is that the circumstances give rise to an equitable right or lien
which would enure in favour of his successors in title the appellants. The absence of appropriate findings by the primary judge is
an obstacle in itself to our acceding to the appellants’ argument.
This difficulty may be put to one side because s.12 of the Native Trust Land Ordinance (Cap. 104) is a complete answer to this aspect
of the appellants’ case. We need do no more than refer to the decision of the Privy Council in Chalmers v. Pardoe (1963) 3 All ER 552, the discussion of s.12 in Kulamma v. Manadan (1968) A.C. 1062 and Maharaj v. Chand (1986) 1 A.C. 898 and, in particular, the discussion of the section in the judgment of this court in Guiseppe Ruggiero v. Nobuyoshi Kashiwa (Civil Appeal No. CBV0005 of 1997) delivered on 20 March 1998.
Even assuming that equity would, apart from s.12, have intervened and have prevented the respondent from obtaining the building for
nothing by granting title, whether by way of charge, lien or otherwise over the land on which the house was erected, that section
as the authorities show, is a bar to relief. The arrangement between the parties coupled with the erection of the building, to the
extent that it gave rise to such an equitable right amounted to a "dealing" with the land, within the meaning of s.12, to which the consent of the Board was not obtained. The dealing was therefore unlawful
under the ordinance and the court cannot grant equitable relief.
This is not a case in which it is possible to say that the parties’ arrangement was subject to obtaining the consent of the Board.
The parties simply proceeded on the assumption that consent was unnecessary with the result that the building was erected regardless
of consent. The consequence is that, assuming the circumstances were such as to generate an equitable right to title, the completion
of the arrangement resulted in illegality. The case is governed by the decision in Chalmers v. Pardoe and must fail.
Messrs. Young and Associates, Lautoka for the Appellants
Haroon Ali Shah Esq., Lautoka for the Respondent
