Mr. R. Chand for Appellant/Defendant
Mr. A.K. Singh for Respondlaintiff
Dates of Hearing and Submissions: 5th December 1997,
9th January, 27th February 1998
Date of Judgment: 3rd July 1998
JUDGMENT
This is an appeal against the decision of the Nausori Magistrate’s Court of the 5th February 1997 which ordered the Appellant to vacate
the property at Nausori formerly occupied by the parties when they were husband and wife as matrimonial property.
The Appellant and the Respondent were divorced in or about 1961. On the 5th July 1962 in Maintenance case No.30 of 1961, at Nausori
Magistrates’ Court the present parties settled maintenance proceedings and Terms of Settlement were tendered to the court after which
the court made certain orders. These, so far as relevant were as follows:
1. Defendant to give his wife user of the freehold land. She to have use of the land for life free of rent. Vacant possession to be
given to wife within one month. Title to land to remain deposited in Court in Nausori maintenance Case No.1 of 1961. Defendant not
to sell or charge the land in any way.
4. Complainant to forgo all claims for maintenance for herself and children.
5. Wife and her agents and assigns to have right to erect a house and other improvements on the land either freehold or rental.
6. Liberty to apply on either side. No order as to costs.
After that order was made the Respondent continued to reside on the property. It was alleged by the Respondent and not denied by the
Appellant that in or about June 1985 the Appellant forcefully evicted the Respondent from the property and occupied the same himself.
Following this the Appellant erected a 4-bedroom house and developed the land by planting root and vegetable crops.
Since sometime in the 1980's the Respondent left Fiji and took up permanent residence in the United States of America.
On the 1st October 1996, the Respondent issued a Notice of Motion in the Nausori Magistrate’s Court seeking the following orders:
1. That the order of 5th July 1962 made by the Magistrate’s Court at Nausori be complied with as follows:
a) The Defendant (Appellant) gives immediate vacant possession of the said property to the Plaintiff (Respondent);
b) That the Defendant (Appellant) is prohibited from entering into the property; and
c) That the Defendant (Appellant) is prohibited from interfering with the Plaintiff (Respondent) or harassing her.
The Nausori Court delivered its decision on the 5th February 1997 and stated on page 7 of the decision that from the affidavit filed
in opposition to the motion by the Appellant:
“One can only surmise that the Defendant’s main contention, was that Ramrajee, the Plaintiff, left the said land vacant most of the
time.”
The Learned Magistrate concluded on the evidence that the Appellant had no right to the land during the life time of the Respondent
and ordered him to give immediate vacant possession of the property to the Respondent. The Learned Magistrate also stated that the
Appellant is liable to the Respondent in damages for wrongful possession of the property from the date he went into occupation, namely
June 1985.
From that decision the Appellant now appeals and I have had submissions from both parties. There are nine grounds of appeal listed
by the Appellant which I shall summarise as follows:
1. There was no substantive claim filed by the Respondent.
2. The affidavit filed on behalf of the Respondent by one Jai Chand sworn on the 1st October 1996 as the duly appointed Attorney of
Ramrajee does not certify Mr Chand’s identity as an Attorney by any documentation.
3. The Learned Magistrate failed to observe that the Respondent should have made an application for variation of the Terms of Settlement
in the 1961 Action and not abused the process of the court by issuing the motion in a Civil Action.
4. The Learned Magistrate erred in law and fact in observing that the Terms of Settlement were accepted and signed by both parties
whereas there is no evidence of such.
5. The Learned Magistrate erred in law in granting damages to the Respondent when there was no prayer for same in the motion.
In the Appellant’s submission to this court the Appellant states that the Learned Magistrate erred in ordering the Appellant to give
vacant possession of the land described in Certificate of Titles 9554 and 17682 and accordingly the Learned Magistrate was wrong
in that there was no reference to these two titles numbers either in the Terms of Settlement or in the decision or Ruling of 5th
December 1996.
In response to these submissions the Respondent first submits that the Appellant is estopped from disputing the Respondent’s right
to the property and relies in particular on two cases, the first Burbery Mortgage Finance & Savings Ltd v Hindsbank Holdings Ltd [1988] NZCA 220; [1989] 1 NZLR 356 in which it was stated that there is equitable or promissory estoppel:
“... where one party has by words or conduct made to the other a clear and unequivocal promise or assurance intended to affect the
relations between them and to be acted on accordingly, then once the other party has taken him at his word and acted on it, the one
who gave the promise or assurance is bound by that assurance unless and until he has given the promisee a reasonable opportunity
of resuming his position.”
In Moorgate Mercantile Co Ltd v Twitchings [1976] 1 QB 225 Lord Denning M.R. said:
“Estoppel is not a rule of evidence. It is not a cause of action. It is a principle of justice and of equity. It comes to this: when
a man, by his words or conduct, has led another to believe in a particular state of affairs, he will not be allowed to go back on
it when it would be unjust or inequitable for him to do so. Dixon J. put it in these words:
“The principle upon which estoppel in pais is founded is that the law should not permit an unjust departure by a party from an assumption
of fact which he has caused another party to adopt or accept for the purpose of their legal relations.”
Sir Owen said so in 1937 in Grundt v. Great Boulder Proprietary Gold Mines Ltd. (1937) 59 C.L.R.641, 674.”
In my opinion the principles of estoppel do not apply in this case which in my judgment must be resolved as the Learned Magistrate
resolved it by referring simply to the Terms of Settlement. I have no doubt that despite the submissions of his counsel now, the
Appellant was fully aware of what he was doing when he and the Respondent submitted Terms of Settlement of the maintenance proceedings
to the Nausori court. This simply was that in lieu of the Respondent foregoing all claims for maintenance for herself and children
she was to have the use of the land in question for life free of rent.
As to the submission by the Appellant that there is no document certifying Mr Jai Chand’s claim to the Attorney of the Respondent
I need only refer to the affidavit of the Appellant of 5th December 1996 in reply to that of the Respondent in which the Appellant
did not question the status of Jai Chand as the Respondent’s Attorney.
In his affidavit sworn on the 5th December 1996, the Appellant states that he is an old man aged about 80 years and has no home whereas
the Respondent now lives in America and does not really need the land for herself.
Whilst one may have certain sympathy for the Appellant who claims that he is also suffering from hypertension and ischaemic heart
disease and is impecunious I have no doubt that he knew when he went into occupation of the property in 1985 that he was disobeying
the Nausori Court Order of July 1962. He was obviously prepared to risk the consequences of such breach.
It is clear that the Respondent was given the use of the property during her life time. In law that simply means the using, holding
or possession of land or other property so as to derive revenue, profit or other benefit from it.
If the Appellant were so concerned about the absence from Fiji and the property of the Respondent there was nothing to have stopped
him from applying to the Nausori Magistrate’s Court for a variation of the Order of 5th July 1962 because of the changed circumstances
of the Respondent. He chose not to do so. Accordingly, I am satisfied that this appeal must be dismissed and I order the Appellant
to pay the Respondent’s costs to be taxed if not agreed.
I make one final comment on this appeal, that it seems to me a great pity that the parties have not attempted to reach some settlement
in this matter without recourse to further litigation. I dare to hope that it may yet not be too late to do so.
JOHN E. BYRNE
JUDGE
Cases referred to in Judgment:
Burbery Mortgage Finance & Savings Limited v. Hindsbank Holdings Limited [1988] NZCA 220; [1989] 1 NZLR 356.
Moorgate Mercantile Company Limited v. Twitchings [1976] 1QB 225.
The following additional cases were referred to in argument:
Thompson v. Palmer [1933] HCA 61; 49 CLR 507.
Waltons Stores (Interstate) Limited v. Maher and Another [1987-8] 164 CLR 387.
Cooper & Sons v. Dawson [1916] VicLawRp 35; [1916] VLR 381.
Henderson v. O’Connell [1937] VicLawRp 2; [1937] VLR 171.
Hba0009.97
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