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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC0011 OF 1992L
BETWEEN:
RAM SAMI
Plaintiff
AND:
RAM CHANDAR
VINOD
1st Defendants
AND:
THE ATTORNEY GENERAL OF FIJI
2nd Defendant
Counsel for the Plaintiff: Dr. Sahu Khan with Ms. S. Sahu Khan
Counsel for the 1st Defendants: Mr. Kitione Vuataki
Counsel for the 2nd Defendant: Ms. S. Tabaiwalu
Date of Hearing: 02 March 2004
Date of Judgment: 15 March 2004
JUDGMENT
The Application
The plaintiff by amended statement of claim filed on 29 April 1999 seeks declarations and orders to effect the rectification by transfer or grant of Crown leases in the Meigunyah Sector, Solovi near Nadi to give to the plaintiff title to the land on which he has erected a concrete house.
Background
Colonial Sugar Refinery Company Limited (CSR) was the owner of a large quantity of freehold land in Fiji which included the land in
certificate of Title Vol. 31 Folio 3000.
The land owned by CSR was leased to farmers for the purpose of growing sugarcane, for farm infrastructure (including houses) and for
sugar mills and ancillary operations including the transport of sugarcane from the farms to the sugar mills.
The plaintiff’s father, Aiyakannu, was a tenant from CSR. After the death of Aiyakannu, his wife the mother of the plaintiff, Punamma, became the tenant of CSR. Punamma died in 1962 and the plaintiff became the tenant of CSR. The plaintiff was born on the land ultimately occupied by the concrete dwelling house in 1934.
The father of the plaintiff built a bure (the original house) on the subject land, prior to 1934.
Following the withdrawal of CSR from Fiji and the formation of Fiji Sugar Corporation Limited (FSC) the lands owned by CSR, including the subject land, were transferred to the Director of Lands. The transfer was registered on the Certificate of Title Vol. 31 Folio 3000 on 29 July 1974 (Exhibit P1).
On 14 August 1974 the plaintiff was issued an Approval Notice of Lease form (agricultural lease) with respect to Farm No. 2264-CT-31/3000 having an estimated area, subject to survey, of 10.5 acres for a period of 22 years 9 months (Exhibit P4).
By agreement between CSR and the Fiji Government tenants were to receive the lands occupied by them pursuant to their lease from CSR by way of a new lease from the Department of Lands. It is therefore contended by the plaintiff that the area of land the subject of the approval notice was the area of land occupied by the plaintiff pursuant to his lease agreement with CSR.
In 1974, the plaintiff constructed a substantial concrete dwelling house on the land.
It is contended by the plaintiff that the lands held by him from CSR comprised three non contiguous parcels of land. The largest parcel was the cane farm which had an area of about 10 acres. The next was Lot 21 in ND 5158, which had an area of about half an acre. The site on which the house was constructed had an area of about 1000 sq. meters and was described as a Lot 2 in NDSW635.
The plaintiff submits that the site on which the house was constructed was in fact included in the 10 acres referred to as the cane farm all be it the parcels of land were not contiguous. It is submitted that this was a not unusual occurrence at that time.
In 1974, the plaintiff constructed a concrete house on the 1000 sq. meters site. This house replaced the previous bure that had been constructed by his father on that same site.
At that time the plaintiff was approached by Yengtesh, it is submitted by the defendant, and asked to stop the construction. The defendants say that the elders of the village were brought in by Yengtesh to counsel the plaintiff against building on the subject land as he had no title to it and it in fact was the land of Yengtesh.
The plaintiff says he informed Yengtesh that he had the approval of the Department of Lands to construct the dwelling house and that following the conveying of that information Yengtesh offered no further objection to the house construction. He further says that he obtained the consent of the Nadi Rural Local Authority pursuant to the Public Health Act for the construction of the house in 1974 as well as obtaining the approval of the Department of Lands as lessor.
Exhibit D3 contains an annexure being an extract from the records of CSR which details the subject land of the plaintiff. It has handwritten notations, which the evidence of Vijay Kumar Raman says were inserted by officers of the Department of Lands and not CSR. These notations together with the typewritten entry would suggest that Ram Sami, the plaintiff, had 0.5 of an acre and 10 acres leased from CSR and that the 10 acres was leased as a “cane area.” The typewritten CSR records also suggest that the house site was away from the farm but on the same title. The handwritten notation suggests that Lot 9 in ND 5155 had an area of 9 acres 3 roods 09 perches and that Lot 21 in ND 5158 had an area of 0 acres 1 rood 07 perches.
Under the heading remarks, there is a handwritten notation which appears to state “consent granted to build a house”. There is no date on which this notation was made.
1 rood 7 perches whilst being slightly less than half an acre might be considered to be approximately half an acre and I think it is reasonable to conclude that the 0.5 of an acre shown in column 7 of the schedule from the CSR records relates to Lot 21 and that the 10.0 acres in that same column of those same records relates to at least Lot 9. The issue is then does it relate to Lot 9 and the 1000 sq. meters upon which the house is situated and further does the notation of consent having been granted for the construction of a house relate to the actual site upon which the house was constructed or is it the granting of approval to construct a house on Lot 21 which the defendant submits was in fact the plaintiff’s house site but that the original bure was built by the plaintiff’s father on land leased to Yengtesh who was a friend of the plaintiff’s father and accordingly the two houses were built adjacent to each other.
The Issues
It would seem the issues for determination by the court are: -
The Evidence
Due to this matter having commenced in 1992 and the fact that much of the evidence relates to events prior to and about 1974 some witnesses are dead and therefore unable to give oral evidence. Statements were tendered by both the plaintiff and the defendant pursuant to the provisions of the Civil Evidence Act.
Apart from the recollections of residents of the village, the plaintiff relies upon an affidavit of Sada Nand who described himself as being the sector clerk employed by CSR in Meigunyah between 1957 and 1972. He states in his affidavit that in about 1959 “there was dispute with Yengtesh regarding house site and paddock, Leeladhar, Mr. John Petteri and myself went to resolve the dispute. The dispute was resolved on the basis that the house site and the paddock was let to plaintiff as tenant of Colonial Sugar Refinery Company Limited.”
He further deposes that “I personally know that Ram Sami was lawful tenant of Colonial Sugar Refinery Company Limited in respect of cane farm land, house site and paddock and the rental thereby was deducted from cane proceeds. The three pieces land are in Meigunyah sector.”
The paddock referred to was transferred by the plaintiff to his son in law with the approval of the Director of Lands in 1986 and is now apparently the subject of a 99 year residential lease.
The 1st defendant called Vijay Kumar Raman to give evidence. He also being the deponent of an affidavit (Exhibit D3) sworn on 7 September 1995. Mr. Raman is described as being a Lands Officer at Lautoka. His evidence identified the extract from the CSR records referred to earlier and also identified the handwritten notations on those records put there by officers of the Department of which he is a member. He deposes that the plaintiff was the lessee from CSR of 2 parcels of land only, being Lot 9 in ND 5155 and Lot 21 in ND 5158.
The evidence of the plaintiff and the defendants is unremarkable in that the plaintiff’s evidence supports his general contentions and the 1st defendants’ evidence supports their general contentions of the matters within their knowledge.
I give little or no weight to evidence given by the parties with respect to things they were allegedly told by their father or other members of the family or other people in the past.
The Estoppel Issue
In considering the application of the doctrine of the estoppel, it is necessary to look to the decision of Brennan J. in Waltons Stores (Interstate) Limited v Maher (1988)164 CLR 337 at 428-9, where His Honour set out the criteria necessary to establish equitable estoppel (which was adopted by McHugh in the Commonwealth v Verwayen (1990) 170 CLR 394 at 502.
This criteria requires that to rely on estoppel it is necessary for a plaintiff to prove that:
(1) The plaintiff assumed that the particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationships will exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship;
(2) The defendant has induced the plaintiff to adopt that assumption or expectation;
(3) The plaintiff acts or abstains from acting in reliance on the assumption or expectation;
(4) The defendant knew or intended him to do so;
(5) The plaintiff’s action or inaction will occasion detriment if the assumption or expectation is not fulfilled;
(6) The defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise.
For the purposes of the second element, a defendant who has not actively induced the plaintiff to adopt an assumption or expectation will nevertheless be held to have done so if the assumption or expectation can be fulfilled only by a transfer of the defendant’s property, a diminution of his rights or an increase in his obligations and he, knowing that the plaintiff’s reliance on the assumption or expectation may cause detriment to the plaintiff if it is not fulfilled, fails to deny to the plaintiff the correctness of the assumption or expectation on which the plaintiff is conducting his affairs.”
In Walton Stores (Interstate) Limited v Maher Brennan J. further said at page 420: -
“The assumption or expectation does not relate to mere facts whether existing or future (an assumption as to a legal relationship may be an assumption that there is no legal relationship, as in cases where A builds on land assuming it to be his own).
Although the party raising the estoppel may be under no mistake as to the facts, he assumes that a particular legal relationship exists or expects that a particular legal relationship will exist between himself and the party who induced the assumption or expectation.”
The task is to apply the facts as they appear from the evidence to the principles as they have been expressed in Walton Stores, The Commonwealth v Verwayen and more recently by the New South Wales Court of Appeal in Byron Shire Council v Vaughan & Anor [2002] NSWCA 158.
The plaintiff was born on the house site in 1934, prior to that time, his father had constructed a bure on the site. In 1974 after the plaintiff became the tenant of CSR and then of the Director of Lands, he sought approval from the Nadi Rural Local Authority to construct a concrete house on the site. The plaintiff deposes that he obtained the consent of the Department of Lands to that construction.
The annexure to Exhibit D3 (the CSR records) contains a notation that consent was granted for the erection of the house. The evidence of Vijay Kumar Raman, an officer of the Department of Lands, confirms that that notation on the CSR records was made by an officer of the Department of Lands. There is, however, no date on which the notation was made nor reference to the particular parcel of land to which it relates.
The plaintiff gives evidence that when the issue was raised in the course of the constructions of the house in 1974 by Yengtesh and others that he satisfied them that he had obtained the approval of the Department of Lands for the construction of the house on the subject land. It seems not to be an issue that the construction of the house was then allowed to proceed and no further objection was made by Yengtesh.
The plaintiff further deposes that in 1979 he sought to carryout extensions to the house and Exhibit P5 is the application for permission to erect, or re-build or repair a building and it would appear relates to the subject house. Exhibit P6 is a location plain or sketch of the property. The approval was given by the Nadi Rural Local Authority pursuant to Public Health Act and Exhibit P7 states: -
“A completion certificate had also been issued on 29/8/79”
The plaintiff says that in 1990 he sought to sell the cane farm land (Lot 9 ND 5155) and sought the consent to that sale from the Department of Lands and Mineral Resources.
Exhibit P13 being a notification from the Department of Lands and Mineral Resources addressed to Messrs A.D. Patel & Co., the plaintiff’s then solicitors, bears a notation signifying that Lot 9 in ND 5155 (9ac3r09p) and Lot 2 NDSW 635 (1000 m² approx.) are to be held under one lease. The plaintiff objected to this and subsequently the Department gave approval to transfer Lot 9 in ND 5155 and Lot 2 in NDSW 635 remained with him.
Lot 21 was in 1986 transferred to the plaintiff’s son in law and again the consent of the Department of Lands was obtained to that transfer and a lease issued to the son in law for residential purposes. The only independent evidence in support of the plaintiff’s contentions is that contained in the affidavit of Sada Nand (Exhibit P16), he being the sector clerk between 1957 and 1972 with respect to the relevant sector, that is, Meigunyah. He says that the plaintiff and his predecessors in title were the tenant of CSR for “sugarcane farmland, house site and another place to tie and keep cattle in a paddock.”
There are also unsworn statements by three former residents of Solovi who also confirm the plaintiff’s version of events and the occupation of the subject land.
The 1st defendants both gave evidence and as I said earlier I put no weight on the hearsay evidence given by them. The court can only consider the evidence that they give of the events that have occurred within their knowledge. This evidence is of little assistance to the court.
Independent evidence however was given on behalf of the defendants by Vijay Kumar Raman, an officer of the Department of Lands, Lautoka. He says in his evidence, relying upon the records of CSR and the notations made by officers of the Department of Lands that the plaintiff was only ever the legal occupier of two parcels of land being the Lot 9 in ND 5155 and Lot 21 in ND 5158 having respective areas of 10 acres and 0.5 acres.
I place little weight on the evidence of the lay witness called by the 1st defendants whose evidence under cross examination was shown to be unreliable.
I conclude on balance therefore that the father of the defendants, Yengtesh, agreed to the construction of the concrete house in 1974 after being informed that the Department of Lands had consented to that construction and on that basis the plaintiff constructed the significant dwelling house on the land and that again in 1979 the plaintiff after obtaining the approval of the Department of Lands and the Nadi Rural Local Authority made extensions or additions to the dwelling house. The land on which the house is built has been continuously occupied by the plaintiff and prior to him by his mother and prior to her by his father for at least the last 70 years.
The house site was occupied by the plaintiff at the time CSR transferred its land holdings including the subject land, to the Director of Lands.
There being 1011.7 m² in a rood or alternatively one perch being equal to 25.293 m² and as there are 4 roods to 1 acre the metric equivalent of half an acre is 2023.4 m². The paddock (Lot 21 in ND 5158) is therefore approximately 1198.8 m² (1 rood 7 perches), 834.6 m² less than half an acre, that is, 20.62% less than half an acre. The site on which the house is built being 1,000 m² is 11.7 m² than 1 rood or one quarter of an acre, that is, 11.56% less than one quarter of an acre.
The CSR records (Exhibit D3 and Exhibit P13) show Lot 9 in ND 5155 to have an area of 9 acres 3 roods and 09 perches and (Exhibit D3) shows Lot 21 in ND 5158 to have an area of 1 rood and 07 perches.
In column 7 of the annexure to Exhibit D3 however the area shown are 0.5 and 10 with column 5 showing the cane area as 10.
If the plaintiff had the three separate parcels of land, the total area leased from CSR would appear from their records to be 10.5 acres or 4.2492 hectares or 42,492 m².
The total area from Department of Lands records would appear to be: -
Lot 9 in ND 5155 - 9 acres 3 roods 09 perches - 39,694.8 m²
Lot 21 in ND 5158 - 1 rood 07 perches - 1,198.8 m²
House site - 1,000 m² - 1,000.0 m²
Total Area = 41,873.6 m²
This approximates to 10 acres 1 rood 16 perches or about 10.35 acres.
Bearing in mind the lack of accurate survey in the CSR records, it seems reasonable that the total CSR area of 10.5 acres could equate to the surveyed area of 10.35 acres.
When considered in conjunction with the evidence of the sector clerk for CSR (Sada Nand), I think on balance one can conclude that all three parcels of land were leased from CSR.
The Approval Notice of Lease Form issued by the Director of Lands to the plaintiff on 14 August 1974, after the government had taken over the land by agreement with CSR, states “estimated area subject to survey 10.5 acres”.
This is the same total area as leased from CSR and accords with the unchallenged evidence that the government was to give to the CSR tenants the lands held from CSR by those tenants at the time the lands were passed to the Director of Lands.
It would seem that as the site of the house had not been the subject of survey or of any separate delineation at the time of the CSR transfer that this may have led to the failure of it to be noted separately in the records at that time.
The 1st defendants lease of Lot 2 in NDSW635 which included the site of the house expired on 31 December 1995 and has not been renewed due to the plaintiff having registered a caveat on the title. There is therefore no current lease with respect to Lot 2 in NDSW635 or the site of the house.
Counsel for the 1st defendants referred the court to Chalmers v Pardoe [1963] 3 All ER 552. Relief in this case was refused by the Privy Council due to the builder of the house not having obtained the necessary consent of the Native Land Trust Board to the construction of the house on the land which he did not lease. As I have found that the consent of the Director of Lands was obtained for the construction of the house in 1974, and for the additions in 1979, the decision of the Privy Council in Chalmers v Pardoe would support the proposition that the plaintiff should be granted relief as it would be inequitable for the 1st defendants to take the house for nothing.
The second defendant by consenting to the construction of the house must be estopped from denying the right of the plaintiff to a lease of the land.
The 1st defendants by the conduct of their father appear only to have withdrawn objection to the construction of the house in 1974 on the 2nd defendant giving consent to that construction.
Conclusion
I find therefore that the plaintiff is entitled to a lease of a 1000 m² parcel of land on which his concrete house is constructed and which has been occupied by him and his family since at least 1934.
As there is no current lease of the subject land, the 2nd defendant can carryout any necessary procedural steps to facilitate the issue of a lease to the plaintiff prior to the granting of a further lease to the 1st defendants of the balance of the land in expired Crown Lease No. 1082.
I invite the parties to bring in orders that reflect the findings that I have made.
JOHN CONNORS
JUDGE
AT LAUTOKA
15 MARCH 2004
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