Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Shankar v Ram [2012] FJHC 823; HBC54.2010 (25 January 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. 54 of 2010

BETWEEN:

SUKENDRA PRASAD SHANKAR,
(f/n David Shiu Shankar) of Nausori, Factory Manager.
PLAINTIFF

AND:

RONALD RATI RAM
(f/n Hari Ram) of Naduru Road, Kuku, Nausori.
DEFENDANT

BEFORE : Master Deepthi Amaratunga

COUNSEL : Mr. G.P.Lala and Shah & Associate for the Plaintiff
Ms. Devan S. for the Defendant

Date of Hearing : 8th December, 2011
Date of Ruling : 25th January, 2012

RULING

1. INTRODUCTION
   

1. The Plaintiff instituted this action to evict the Defendants from the premises described in the summons. The Plaintiff is the last registered proprietor of the property. The Defendant is the brother-in-law of the Plaintiff and he had built a house and some structures including a church on the property and has lived peacefully for nearly 20 years, but due to a dispute between the parties now the Plaintiff seeks to evict the Defendant from the premises.
   

2. FACTS
   

2. The Defendant admits that he came to the property on the invitation of the Plaintiff and his wife (the sister of the Defendant) to assist them for looking after their property. The wife of the Plaintiff has written a letter to that effect and the affidavit in opposition annexed it marked as RRR1.
   
3. The Defendant alleges following improvements to the property
   
   1. A single story residential concrete house with timeber and iron extension with fencing.
   2. A church with concrete structure.
   100. A playground for children.
        
4. The Defendant states that he did all the improvements on the promise that the land where he did the improvements will be eventually transferred to him.
   
5. The Defendant state that the area he lived had been separately surveyed with the concurrence of the Plaintiff, on the premise that demarcated are will be transferred to him and subsequent to the said agreement he had also built a fence surrounding the area to demarcate the area that he is in occupation. The Defendant alleges has also built a church on the said land.
   
6. The Defendant has also submitted the alleged consent of the Plaintiff to build the said church, where he had even agreed to donate the area where the curch is situated to the church and this is evidenced from R R2. The Plaintiff has not denied that fact.
   
7. The Defendant alleges that dispute started when the Plaintiff was not elected to a position he held for three consecutive years in 2010 annual general meeting.
   

100. LAW AND ANALYSIS
     

8. The Plaintiff has instituted this action for eviction in terms of Section 169 of the Land Transfer Act and it sates as follows.
   

169. The following persons may summon any person in possession of land to appear before a judge in chambers to show cause why the person summoned should not give up possession to the applicant:-

(a) the last registered proprietor of the land;

(b) a lessor with power to re-enter where the lessee or tenant is in arrear for such period as may be provided in the lease and, in the absence of any such provision therein, when the lessee or tenant is in arrear for one month, whether there be or be not sufficient distress found on the premises to countervail such rent and whether or not any previous demand has been made for the rent;

(c) a lessor against a lessee or tenant where a legal notice to quit has been given or the term of the lease has expired.

9. The Plaintiff has filled the summons in terms of the Section 170 and in order to obtain an order for eviction of the Plaintiff has to satisfy the requirement containded in Seciton 171
   

'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.'

10. The Plaintiff needs to satisfy the court that he is the proprietor and for that he needs to produce the title. The affidavit in support did not annex the title to the land. The Plaintiff did not file any supplementary affidavit annexing the title to the premises where he intended to evict the Defendant.
    
11. The Plaintiff did not seek to produce the title even at the hearing of this summons and this summons should be dismissed in limine due to the failure of the Plaintiff to prove the title as the proprietor, though the Defendant has not taken up this objection as it is the duty of the Plaintiff to prove its title to the premises and that is a prerequisite in an application in terms of Section 169 where the Defendant can be summarily evicted. The document that the court would have to necessarily look at, before granting an order for eviction is the title. Evicting a person is a thing that cannot be done without the proof of the certificate of title or documentary proof of registered title in terms of the provisions contained in Section 169 of the Land Transfer Act. Without this the summons for eviction would be dismissed in limine, even though the other party has not taken that preliminary point as an objection.
    
12. Without prejudice to the above preliminary issue, I would now proceed to analysis of the merits of this case.
    
13. Only upon the proof of the title that the Defendant would be required to satisfy that he has a right to remain in possession.
    
14. Section 172 states 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, mortgagee or lessor or he may make any order and impose any terms he may think fit;"

15. The Plaintiff in his affidavit in reply to the affidavit in opposition admitted that he had invited the Defendant to stay with him in the same premises and also states that that it happened as far back as 1992 and he admitted that the Defendant was not asked to pay rent for the occupation of the land. These admissions substantiate and reinforce the position of the Defendant
    
16. The Plaintiff in paragraph 5 of the affidavit in reply has admitted that the Defendant has built a house made out of concrete and some other structures and state that those other structures are removable but the Plaintiff has remained silent for over 20 years when the above movable as well as permanent structures were built. In Morris Hedstrom Limited –v- Liaquat Ali CA No: 153/87, the Supreme Court of Fiji described the scope of the said provision contained in section 172.
    
17. In the case of Morris Hedstrom Limited –v- Liaquat Ali CA No: 153/87, the Supreme Court said that:-
    

"Under Section 172 the person summonsed may show cause why he refused to give possession of the land 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 is mine)

18. What the Defendant needs to satisfy is not a fully-fledged right recognized in law, to remain possession but some tangible evidence establishing a right or some evidence supporting an arguable case for such a right to remain in possession. So, even in a case where the Defendant is unable to establish a complet right to possession, if he can satisfy an arguable case for a right still he would be successful in this action for eviction, to remain in possession.
    
19. In opposition to this application, the Defendant states that she has an equitable interest in the said property. In Denny v Jessen [1977] 1 NZLR 635 at 639 Justice White summarized the proprietary estoppel as follows:
    

"In Snell's Principles of Equity (27thed) 565 it is stated that proprietary estoppel is "... capable of operating positively so far as to confer a right of action". It 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. In Plaimmer v Wellington City Corporation (1884) 9 App Cas 699; NZPCC 250 it was stated by the Privy Council that "...the equity arising from expenditure on land need not fail merely on the ground that the interest to be secured has not been expressly indicated." (ibid, 713, 29). After referring to the cases, including Ramsden v Dyson [1866] UKLawRpHL 7; (1866) LR 1 HL 129, the opinion of the Privy Council continued, "In fact the court must look at the circumstances in each case to decide in what way the equity can be satisfied" (9 App Cas 699, 714; NZPCC 250, 260). In Chalmers v Pardoe [1963] 1WLR 677; [1963] 3 All ER 552 (PC) a person expending money was held entitled to a charge on the same principle. The principle was again applied by the Court of Appeal in Inwards v Baker [1965] EWCA Civ 4; [1965] 2 QB 29; [1965] 1 All ER 446. There a son had built on land owned by his father who died leaving his estate to others. Lord Denning MR, with whom Danckwerts and Salmon L JJ agreed, said that all that was necessary;

"... is that the licensee should, at the request or with the encouragement of the landlord, have spent the money in expectation of being allowed to stay there. If so, the court will not allow that expectation to be defeated where it would be inequitable so to do."(ibid, 37,449).

20. The general rule, however, is that "liabilities are not to be forced upon people behind their backs"and four conditions must be satisfied before proprietary estoppel applies.
    
21. There must be an expenditure, a mistaken belief, conscious silence on the part of the owner of the land and no bar to the equity ..."Conscious silence" implies knowledge on the part of the defendant that the plaintiff was incurring the expenditure and in the mistaken belief that here was a contract to purchase and that here defendant "stood by" without enlightening the plaintiff. In short the plaintiff must establish fraud or unconscionable behavior. The rule based on the cases cited, is stated in Snell (op cit) 566 as follows:
    

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

This passage was adopted by MegarryJ in Re Vandervell's Trusts (No 2)[1974] Ch 269,301[1974] 1 All ER 47, 74".

22. The above, was quoted in the case of HBC 40 of 2009 in the High Court Fiji at Labasa in the case of Wilfred Thomas Peter V Hira Lal and Frasiko by Justice AnjalaWati and stated
    

'I must analyse whether the four conditions have been met for the defense of proprietary estoppel to apply. The four conditions are:

1. An expenditure;
2. A mistaken belief
3. Conscious silence on the part of the owner of the land; and
4. No bar to the equity.
   

23. The Plaintiff in his affidavit in reply admitted that the plaintiff has built a house and some other structures in the premises and has also admitted the survey that resulted the area the Defendant in occupation being demarcated with fencing. This clearly indicate the agreement between the minds of the parties to separate the area where the Defendant is in occupation well over 20 years, with permanent structures including a house and also a church. So, clearly there is expenditure and that was done with a mistaken belief and the camaraderie that prevailed in or around 1992, nearly 20 years ago and that had remained and continued for that period, but suddenly this peaceful co-existence broke, and the Plaintiff wants the Defendant to leave the premises uprooting the structures including the concrete permanent place of residence.
    
24. There is conscious silence on the part of the Plaintiff till all of the said improvements were done for nearly 20 years and there is no bar to the equity to allow the possession of the Defendant and in the circumstances since the Defendant has shown an arguable case to remain possession on the principles of proprietary estoppel the summons for eviction of the Defendant is refused. The summons for eviction accordingly dismissed and the action struck off. I will also grant a cost of $1,500 assessed summarily to the Defendant to be paid within 21 days.
    

4. CONCLUSION
   

25. The summons to evict the Defendant can be dismissed on both preliminary issue as well as on the merits. Though I could easily dismissed the summons since there is no proof of title I did not do so considering the time and money that had incurred in this matter. On the merits it is clear that the Plaintiff has invited the Defendant to the premises and allowed him to carryout substantial improvement sand also to fencing of them to demarcate the area he is in occupation separately. For 20 years the bonhomie and camaraderie between theparties prevailed and suddenly now the Plaintiff seeks eviction. No reason given for such a complete change of mind, by the Plaintiff. Defendant alleges some loss of a position that the Plaintiff held in the Church, but I cannot verify the correctness of it. It is clear that Defendant has established proprietary estopple and or an arguable case to remain in possession on the proprietary estoppel. What the Defendant has to show is not a clear right to remain in possession and he has shown an arguable case for a right to claim proprietary estoppel.
    

5. FINAL ORDERS
   

1. The summons for eviction is dismissed and struck off.
2. The Plaintiff is ordered to pay a cost of $1,500 to the Defendant within 21 days
   

Dated at Suva this 25th day of January, 2012.

.................................................
Mr. Deepthi Amaratunga
Master of the High Court

Suva