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Tuidama v Prasad [2011] FJHC 236; HBC508.2007 (28 April 2011)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

NO. HBC 508 of 2007

IN THE MATTER of part XXIV of the
Land Transfer Act Cap. 131

BETWEEN:

TULIA RASILA TUIDAMA
(father's name Ram Dayal) of 5 Extension Street, Suva,
in the Republic of Fiji Islands, Company Director.
Plaintiff

AND:

HARI PRASAD
(father's name Ram Narayan) of Lot 8 Nabilo, Tailevu,
in the Republic of Fiji Islands, Fisherman
Defendant

Counsel : Ms Drova for the Plaintiff
Ms S. Maharaj for the Defendants

Hearing: Written Submissions of the Plaintiff filed on 19th March, 2008
Written Submissions of the Defendant filed on 18th March, 2008

Date of Judgment : 28 April, 2011

Judgment of: JUSTICE A.L.B.BRITO-MUTUNAYAGAM

JUDGMENT OF THE COURT

[1] The Plaintiffs Case

By Originating Summons filed on 25 October,2007,the Plaintiff has sought an Order under Section 169 of the Land Transfer Act (Cap 131), to obtain vacant possession of the land and premises comprised in Certificate of Title No 33804 known as Lot 8 on DP No.8402 containing an area of 1192 square metres known as "Nabati.

Upon the death of the Plaintiff's father, the land had been transferred to the Plaintiff on 22 January,2007.

On 23rd August,2007, the Defendant had been served with a notice to vacate the said property,but the Defendant had refused to do so.

In response to the Defendant's contention that he built a permanent house on the land, the Plaintiff, in her Affidavit in reply, states that her father permitted people to live on the land and build temporary homes of lean- to structures.

[2] The Defendants' Case

The Defendant's defence was that the Plaintiff's father had invited him to take possession of the property,upon the Defendant purchasing the land from him for $5000.

[3] The Law

The Plaintiff is indisputably the last registered proprietor of the land. In terms of Section 169 (a) of the Land Transfer Act,the last registered proprietor is entitled to bring summary proceedings for vacant possession.

The procedure under Section 169 is governed by Section 172 which reads as follows:

"If the person summoned appears he may show cause why he refuses to give possession of such land and, if he proves to the satisfaction of the judge a right to the possession of the land, the judge shall dismiss the summons with costs against the proprietor,... and he may make any order and impose any terms he may think fit: Provided that the dismissal of the summons shall not prejudice the right of the plaintiff to take any other proceedings against the person summoned to which he may be otherwise entitled......"

The Supreme Court in Morris Hedstrom v. Liaquat Ali [Action No. 153/87 at page 2) stated the requirements of Section 172 as follows:

"Under Section 172 the person summoned may show cause why he refused to give possession of the land and if he proves to the satisfaction of the judge a right to possession or can establish an arguable defence the application will be dismissed with costs in his favour. The Defendants must show on affidavit evidence some right to possession which would preclude the granting of an order for possession under Section 169 procedure. That is not to say that final or incontrovertible proof of a right to remain in possession must be adduced. What is required is that some tangible evidence establishing a right or supporting an arguable case for such a right, must be adduced." (emphasis mine)

[4] The Issue before Court

The issue for determination before the court is whether the Defendant has shown cause and proved to the satisfaction of the Court,a right of possession to the relevant land.

The Defendant's defence, that the Plaintiff is estopped from evicting him, as he is a purchaser in possession of the land, is concerned with the doctrine of proprietary estoppel.

Snell's Equity,29th Ed, page 573-575 provides;

" Proprietary estoppel is one of the qualifications 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....".

White J in Denny v Jensen [1977]1 NZLR 635 at page 638, enunciated the following four conditions that must be satisfied before proprietary estoppel applies viz, there must be:-

1. an expenditure,
2. a mistaken belief,

100. a conscious silence on the part of the owner of the land, and

4. no bar to the equity.
   

These tests were adopted by Madame Justice Anjala Wati in Wilfred vs Hira Lal(HBCL 40 of 2009).

1. Expenditure
   

The person claiming must have incurred expenditure on the land.It would appear from the Affidavit filed by the Defendant that expenditure was incurred by the Defendant in the construction of a dwelling house

2. Mistaken belief
   

In order to found an estoppel, the Defendant must have acted in: "the belief either that he already owned a sufficient interest in the property to justify the expenditure or that he would obtain such an interest.."-Snell's Equity,29th Ed, page 575(emphasis added, footnotes omitted)

The Defendant has asserted that a sum of $4500 was paid towards the purchase price of $5000 for the land. In support, a copy of a singular receipt in respect of a payment of $650 was produced. The authenticity of the said receipt was challenged by the Plaintiff, who has also correctly observed that the receipt does not make reference to the land in dispute.

The Plaintiff, in its written submissions, begged the question why no claim was made on the estate of the Plaintiff's father if a sale had taken place, and also placed reliance on the absence of a sale and purchase agreement.

In my judgment, the Defendants' contention that the purchase "was verbal" and that the other receipts of payments for the purchase of the land had been destroyed in floods and others misplaced, is unconvincing.

In an analogous case, Wati vs Prasad, (1999 FJHC 132),the Defendant, had produced a copy of a receipt as evidence of payment of half the purchase price for land, and alleged that his name had been crossed out therein. Pathik J was not satisfied that the Defendant paid the sum alleged to have been paid, and held the Defendant did not have any beneficial or equitable interest in the land by virtue of having been brought on the land by the deceased, in the absence of a writing as required by Section 59 (d) of the Indemnity, Guarantee and Bailment Act. The judgment of Pathik J was upheld by the Court of Appeal in Prasad vs Wati (2001 FJHC 40).

In my judgment, the Defendant has failed to prove to the satisfaction of the Court that he made payments towards the purchase of the land. It follows that the Defendant had no "belief either that he already owned a sufficient interest in the property to justify the expenditure or that he would obtain such an interest ..." and therefore " has no equity in respect of his expenditure" -Snell's Equity,(op cit) (emphasis added, footnotes omitted).

100. Conscious silence
     

The third condition that must be fulfilled in order to found an estoppel, is that the Defendant must have been actively or passively encouraged by the Plaintiff.

There is no evidence that the Plaintiff's predecessor encouraged the Defendant to expend money on the assurance that the land will be sold to him.White J elucidation in Denny v Jensen(op cit) on what constitutes "Conscious silence" is instructive.

"..........."Conscious silence" implies knowledge on the part of the defendant that the plaintiff was incurring the expenditure and in the mistaken belief that there was a contract to purchase and that the defendant "stood by" without enlightening the plaintiff. In short the plaintiff must establish fraud or unconscionable behaviour. The rule, based on the cases cited, is stated in Snell ..as follows:

Snell's Equity (op cit) states:

"Knowledge of the mistake makes it dishonest for him to remain wilfully passive in order afterwards to profit by the mistake he might have prevented. The knowledge must accordingly be proved by 'strong and cogent evidence'".

d) No bar to equity

Snell's Equity,29th Ed, page 576 provides that "No equity will arise if to enforce the right claimed would contravene some statute.."

Section 59 (d) of the Indemnity, Guarantee and Bailment Act (Chapter 232),which so far as material to these proceedings provides:

"No action shall be brought

(d) upon any contract or sale of lands, tenements or hereditaments or any interest in or concerning them unless the agreement upon which such action is to be brought or some memorandum or note thereof is in writing.."

The Defendant had not complied with the above provision in that there was no sale and purchase agreement entered into.

I hold that the Defendant has failed to prove to the satisfaction of the Court the necessary premises of fact in order to found an application of the equitable doctrine of proprietary estoppel.

The Plaintiff and Defendant in their written submissions, have cited the case of Deo v Mati, (2005 FJHC 136).In this case, the Court had granted the registered proprietors of the land vacant possession of the land as it was found that the Defendant, who had built a house therein, was unlawfully on the property.

5. Order

For the aforesaid reasons, I find that the Defendant has not "shown cause" under Section 172 of the Land Transfer Act to the satisfaction of Court that he has a right to remain on the land .I hold the Plaintiff succeeds on its summons in terms of Section 169 of the said Act for immediate vacant possession of the land. The Defendant is ordered to give vacant possession of the land to the Plaintiff. The Plaintiff is entitled to costs summarily assessed at $ 500.

It is further ordered that either the Plaintiff pay the value of the house built by the Defendant on the land, at a price to be agreed upon or upon a valuation by a registered valuer with the cost of the valuation to be borne by the Plaintiff and Defendant jointly; or alternatively, if there is no agreement, the Defendant may be permitted to remove the house at the cost of the Defendant within three months from the date of this judgment. And it is further ordered that execution be stayed for three months until compensation or removal is completed .

A.L.B.Brito-Mutunayagam
JUDGE
At Suva
28 April, 2011