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Kumar v Kumar [2015] FJHC 563; HBC215.2014 (31 July 2015)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

CIVIL JURISDICTION

CIVIL ACTION NO. HBC 215 of 2014

IN THE MATTER of Section 169 of the Land Transfer Act, Cap. 131

BETWEEN:

JAGDISH KUMAR AND ASHNEEL KUMAR both of Varoko Ba, Labourers as executors and Trustees of ESTATE OF VISHNU DEO aka BISUN DEO of Varoko, Ba, Cutlivator, Deceased.
PLAINTIFFS

AND:

RANJIT KUMAR of Varoko, Ba, Middleman
DEFENDANT

(Mr) Victor Vishal Sharma for the Plaintiffs
(Mr) Mark Joseph Anthony for the Defendant

Date of Hearing:- 29th April 2015
Date of Ruling:- 31stJuly 2015

RULING

(A) INTRODUCTION

1. Before me is the Plaintiffs Originating Summons pursuant to Section 169 of the Land Transfer Act for an Order for vacant possession against the Defendant.

2. The Defendant is summoned to appear before the Court to show cause why he should not give up vacant possession of the Plaintiffs property comprised in Crown Lease No. 16255. [Lot 01, Plan No. 2318, having an area of 9.3280 ha]

3. The application for eviction is supported by an affidavit sworn by the Plaintiffs on 03rdDecember 2014.

4. The application for eviction is strongly resisted by the Defendant.

5. The Defendant filed an Affidavit in Opposition opposing the application for eviction followed by an Affidavit in Reply thereto.

6. The Plaintiffs and the Defendant were heard on the Originating Summons. They made oral submissions to court. In addition to oral submissions, they filed a careful and comprehensive written submission for which I am most grateful.

(B) THE LAW

(1) Sections from 169 to 172 of the Land Transfer Act (LTA) are applicable to summary application for eviction.

Section 169 states;

"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) .....;

(c) ...

Section 170 states;

"The summons shall contain a description of the land and shall require the person summoned to appear at the court on a day not earlier than sixteen days after the service of the summons."

Section 171 states;

"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.

Section 172 states;

"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, mortgage or lessor or 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:

Provided also that in the case of a lessor against a lessee, if the lessee, before the hearing, pay or tender all rent due and all costs incurred by the lessor, the judge shall dismiss the summons.

[Emphasis provided]

(2) The procedure under Section 169 was explained by Pathik J in Deo v Mati [2005] FJHC 136; HBC0248j.2004s (16 June 2005) as follows:-

The procedure under s.169 is governed by sections 171 and 172 of the Act which provide respectively as follows:-

"s.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."

"s.172. If a 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."

It is for the defendant to 'show cause.'

(3) The Supreme Court in considering the requirements of section 172 stated in Morris Hedstrom Limited v. Liaquat Ali (Action No. 153/87 at p2) as follows and it is pertinent:

"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."

(4) The requirements of section 172 have been further elaborated by the Fiji Court of Appeal in Azmat Ali s/o Akbar Ali v Mohammed Jalil s/o Mohammed Hanif (Action No. 44 of 1981 – judgment 2.4.82) where it is stated:

"It is not enough to show a possible future right to possession. That is an acceptable statement as far as it goes, but the section continues that if the person summoned does show cause the judge shall dismiss the summons; but then are added the very wide words "or he may make any order and impose any terms he may think fit" These words must apply, though the person appearing has failed to satisfy the judge, and indeed are often applied when the judge decides that an open court hearing is required. We read the section as empowering the judge to make any order that justice and the circumstances require."

(C) FACTUAL BACKGROUND AND ANALYSIS

(1) What are the facts here? It is necessary to approach the case through its pleadings/affidavits, bearing all those legal principles in my mind.

(2) To give the whole picture of the action, I can do no better than set out hereunder, the main averments/assertions of the pleadings/affidavits.

(3) The Plaintiffs in their affidavit in support deposed inter alia;

➢ THAT we are the Executors and Trustees for the Estate of Vishnu Deo aka Bisnu Deo late of Varoko, Ba, Cultivator, Deceased, Testate pursuant to probate granted by the Honorable High Court. Probate Jurisdiction vide probate No. 48462. The annexed hereto and marked with letter "A" is a copy of the said probate together with will attached.

➢ THAT the deceased was the registered proprietor of all the land contained in Crown Lease No. 16255 being lot 1 on Plan No. BA 2316 known as Varoko & Tavei in Island of VitiLevu, District of Ba having an area of 9.3280 Hectares. That annexed hereto and marked with letter "B" is a certified true copy of the said lease agreement.

➢ THAT subsequent to the grant of the probate we had applied and had been registered as the last registered proprietor of the above stated Crown Lease No. 16255. That annexed hereto and marked with letter "C" and "D" are the copies of the registered Transmission by Death and the Memorial page of Crown Lease 16255 showing our names as the last registered proprietors.

➢ THAT the subject lease being a protected lease and as such consent of the Director of Lands/Divisional Surveyor Western to institute this proceeding has been duly obtained. That annexed hereto and marked with letter "E" is a copy of the said consent.

➢ THAT the defendant is one of the sons deceased and residing on the said land occupying one of the houses of the deceased however in the last will and testament, the deceased did not bequeath or give any rights or benefits to the defendant in the said land or any of the houses existing on the subject land. That I crave lease to refer to the will dated 5th April, 2007 attached in annexure "A" above.

➢ THAT the defendant is presently unlawfully illegally and without any right occupying the house of the deceased and which house together with the rest and remainder of the Estate has been bequeathed to Ashneel Kumar.

➢ THAT notices to quit and deliver vacant possession vide notice dated 19th November, 2013 was served on the defendant requiring him to quit and deliver vacant possession of the subject property within 30 days. That annexed hereto and marked with letter "F" is a copy of the said notice.

➢ THAT the defendant has refused and or neglected to comply with the said notice and has not till to date given vacant possession of the subject land and house.

➢ THAT the defendant is not a beneficiary in the Estate of Vishnu Deo aka BisunDeo and has no legal or any equitable right to continue to occupy the said land and house and therefore is a Trespasser on the subject land.

(4) The Defendant for his part in seeking to show cause against the Summons, filed an affidavit in which he deposed inter alia;

➢ That I was the beneficiary in the initial will of my father but omitted from the last will for reasons still unknown to me.

➢ That I was the beneficiary at the time my father Vishnu Deo aka Bisun Deo have consent to construct and extend my house and business shed in the Estate.

➢ That I was the beneficiary at the time my father Vishnu Deo aka Bisun Deo gave consent to construct and extend my house and business shed in the Estate. Attached and marked as Annexure 'RK1' is a copy of the letter by Salim Khan who is the Advisory Councillor confirming the same.

➢ That the Water and Electricity was under my name and responsibility, and I made continuous payments for water and electricity in the estate for a long period of time.

➢ That I have paid for the water and electricity bills which was authorised by my late father. Attached and marked as Annexure "RK2" are copies of the receipt and bills paid to the Fiji Electricity Authority and the Fiji Water Authority.

➢ That with the full consent of my late father, I have also constructed a borehole for the use of our whole family and my father. Attached and marked as Annexure "RK3" is a copy of the invoice from Borehole Drilling Company Ltd.

➢ That I was cultivating and farming sugar cane from my share of 2 acres under my father's estate under contract number 8715 since the year 1994 to 2008. Attached and marked as Annexure "RK4"is a letter dated 20th March, 2015 by the President/Sirdar of the LT43 Gang confirming the same.

➢ That I had the full consent and authority given by my late father to use and live on the said land since my birth.

(5) The Plaintiffs filed an affidavit in rebuttal deposing inter alia;

➢ THAT as to paragraph 3 of the Defendant's affidavit, we deny that the Defendant was ever omitted from the last will of Vishnu Deo and that he further was in a former will. In any event, the Defendant cannot rely on previous wills of the late Vishnu Deo. In annexure A in our affidavit dated the 29th of December, 2014, the Late Vishnu Deo made it quite clear that "I HEREBY REVOKE all former wills and testamentary dispositions hereto before made by me and declare this to be my last will and testament" on his will dated 5th of April, 2007. If Vishnu Deo intended the Defendant to be a beneficiary and live on the property, he would have devised the same.

➢ THAT as to paragraph 4 of the Defendant's affidavit, we deny the contents. Further, the house the Defendant is alluding to was built by Vishnu Deo because I used to live in the same house built by Vishnu Deo from my birth until forced out by the Defendant, as only he had consent to erect buildings on the lease.

➢ THAT as to paragraph 5 and 6 of the Defendant's affidavit, we agree that the F.E.A. and TFL Bills are attached, however the bills do not identify any form of relationship to the Property. Further, we do dispute that the said utilities were consented to by the Director of Lands and Vishnu, and further we as trustees also do not consent for the Defendant's ownership of the utilities. That the Defendant unlawfully changed the billing address from Vishnu Deo, we through our lawyers had written to the FEA, enquiring about the suspicious change of billing names. The authority rectified the situation by issuing me the bills then on. Annexed hereto and marked "AK1" is a copy of the letter dated the 22nd of August, 2014 from my Solicitors and a FEA receipt. The Defendant is now illegally directing power from a farm shed through underground wiring to the house. I have notified the Authority, and they have informed me that they will conduct the necessary investigations.

➢ THAT we deny the contents of paragraph 7 of the Defendant's affidavit. The attached document is a quotation not an invoice. In any event, the said quotations are formulated in 2010, and we as trustees did not consent for the borehole to be built. Further I had constructed a borehole on the property however the Defendant burnt the same. I have reported the matter to police, the Defendant has been charged in the criminal case number 39 of 2014. Annexed hereto and marked with letter "AK 2" is copy of the damage report and police reports.

(6) This is an application brought under Section 169 of the Land Transfer Act, [Cap 131].
Under section 169, certain persons may summon a person in possession of land before a judge in chambers to show cause why that person should not be ordered to surrender possession of the land to the Claimant.

For the sake of completeness, section 169 of the Land Transfer Act, is reproduced below;

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.

I ask myself, under which limb of section 169 is the application being made?

Reference is made to paragraphs (01), (02) and (03) of the affidavit in support of the application for vacant possession.

1. THAT we are the Executors and Trustees for the Estate of Vishnu Deo Aka Bisnu Deo late of Varoko, Ba, Cultivator, Deceased, Testate pursuant to probate granted by the Honorable High Court. Probate Jurisdiction vide probate No. 48462. That annexed hereto and marked with letter "A" is a copy of of the said probate together with will attached.

2. THAT the deceased was the registered proprietor of all the land contained in Crown Lease No. 16255 being Lot 1 on Plan No. BA2316 known as Varoko & Tavei in island of Viti Levu, District of Ba having an area of 9.3280 Hectares. That annexed hereto and marked with letter "B" is a certified true copy of the said lease agreement.

3. THAT subsequent to the grant of the probate we had applied and had been registered as the last registered proprietor of the above stated Crown Lease No. 16255. That annexed hereto and marked with letter "C" and "D" are the copies of the registered Transmission by Death and the Memorial page of Crown Lease 16255 showing our names as the last registered proprietors.

Section 169 (a) of the Land Transfer Act, Cap 131, requires the Plaintiff to be the last registered proprietor of the land.

The term "proprietor" is defined in the Land Transfer Act as "the registered proprietor of land, or of any estate or interest therein".

The term "registered" is defined in the Interpretation Act, Cap 7, as "registered used with reference to a document or the title to any immovable property means registered under the provisions of any written law for the time being applicable to the registration of such document or title"

According to the memorials of Crown Lease No:-16255, the Plaintiffs became the lessee of the subject land on 18thFebruary 2014. The Crown Lease is registered with the Registrar of Titles. Therefore, the Plaintiffs hold a registered lease and could be characterised as the last registered proprietor.

On the question of whether a lessee can bring an application under Section 169 of the Land Transfer Act, if any authority is required, I need only refer to the sentiments expressed by Master Robinson in "Michael Nair v Sangeeta Devi", Civil Action No: 2/12, FJHC, decided on 06.02.2013. The learned Master held;

"The first question then is under which ambit of section 169 is the application being made? The application could not be made under the second or third limb of the section since the applicant is the lessee and not the lessor as is required under these provisions. But is the applicant a registered proprietor? A proprietor under the Land Transfer Act means the registered proprietor of any land, or of an estate or interest therein". The registration of the lease under a statutory authority, the iTLTB Act Cap 134, creates a legal interest on the land making the applicant the registered proprietor of the land for the purposes of the Land Transfer Act. He can therefore make an application under section 169 of the Land Transfer Act".

The same rule was again applied by the learned Master in "Nasarawaqa Co- operative Limited v Hari Chand", Civil Action No: HBC 18 of 2013, decided on 25.04.2014. The learned Master held;

"It is clear that the iTLTB as the Plaintiff's lessor can take an action under section 169 to eject the Plaintiff. This is provided for under paragraphs [b] & [c]. For the lessor to be able to eject the tenant or the lessee it must have a registered lease. It is not in dispute that the Plaintiff holds a registered lease, the lease is an "Instrument of Tenancy" issued by the iTLTB under the Agricultural Landlord and Tenancy Act. It is for all intents and purposes a native lease and was registered on the 29 November 2012 and registered in book 2012 folio 11824. It is registered under the register of deeds. There is nothing in section 169 that prevents a lessor ejecting a lessee from the land as long as the lease is registered. How will the lessee then eject a trespasser if the lessor in the same lease can use section 169? The lessee under section 169 can eject a trespasser simply because the lessee is the last registered proprietor. The Plaintiff does not have to hold a title in fee simple to become a proprietor as long as he/she is the last registered proprietor. A proprietor is defined in the Land Transfer Act as "proprietor" means the registered proprietor of land, or of any estate or interest therein". The Plaintiff has an interest by virtue of the instrument of tenancy and therefore fits the above definition and can bring the action under section 169."

A somewhat similar situation as this was considered by His Lordship Justice K.A. Stuart in Housing Authority v Muniappa1977, FJSC. His Lordship held that the Plaintiff Housing Authority holds a registered lease therefore it could be characterised as the last registered proprietor.

In Habib v Prasad [2012] FJHC 22, Hon. Madam Justice Angala Wati said;

"The word registered is making reference to registration of land and not the nature of land. If the land is registered either in the Registrar of Titles Office or in the Deeds Office, it is still registered land. This land has been registered on 4th March, 2004 and is registered at the Registrar of Deeds Office, it is still registered land. The registration is sufficient to meet the definition of registered in the Interpretation Act Cap 7:-

"Registered" used with reference to a document or the title to any immoveable property means registered under the provision of any written law for the time being applicable to the registration of such document or title".

Being guided by those words, I am satisfied that the Plaintiffs are the last registered proprietor of the land comprised in Crown Lease No: 16255. The application for eviction is more specifically brought under Section 169 (a) of the Land Transfer Act.

(7) I turn next to consider the requirements of Section 170 of the Land Transfer Act.
For the sake of completeness, Section 170 of the Land Transfer Act is reproduced below;

Particulars to be stated in summons

170. The summons shall contain a description of the land and shall require the person summoned to appear at the court on a day not earlier than sixteen days after the service of the summons.

Pursuant to Section 170 of the Land Transfer Act, the Summons shall contain a "description of the Land" and shall require the person summoned to appear in the court on a day not earlier than "sixteen days" after the service of Summons.

The interval of not less than 16 days is allowed to give reasonable time for deliberations and to prevent undue haste or surprise.

I ask myself, are these requirements sufficiently complied with by the Plaintiffs?

The Originating Summons filed by the Plaintiffs does contain a description of the subject land. The subject land is sufficiently described. For the sake of completeness, the Originating Summons is reproduced below;

"LET the Defendant, RANJIT KUMAR of Varoko, Ba Middleman, attend before a Master in Court at the High Court at Lautoka on the 13th day of February 2015 at the hour of 8.30 o'clock in the forenoon or so soon thereafter as Counsel may be heard on behalf of the Plaintiff for the following Orders:-

(1) THAT the Defendant do give up immediate vacant possession to the Plaintiff of all the Land known as Varoko & Tavel in the island of Viti Levu Town of Ba comprised in Crown Lease Number 16255 being Lot 1Plan No. BA 2318 having an area of 9.3280 ha.

(2) THAT any further or other Orders this Honourable Court deems just.

(3) THAT the Defendant do pay the costs of this Action on Solicitor/Client indemnity basis.

The Plaintiff will read and rely on the grounds of this Application as contained in the Affidavit of JAGDISH KUMAR and ASHNEEL KUMAR sworn and filed herein.

This Application is made pursuant to Sections 169, 170 and 171 of the Land Transfer Act, Cap 131 and Pursuant to the Inherent Jurisdiction of this Honourable Court."

(Emphasis Added)

In light of the above, I have no hesitation in holding that the first requirement of Section 170 of the Land Transfer Act, has been complied with.

I turn next to consider the second requirement of Section 170 of the Land Transfer Act. The Summons which was returnable on 13thFebruary2015, was served on the Defendant on 24th January 2015, which is a day clearly not less than 16 days after the Service of the Summons. Therefore, the second express requirement of Section 170 of the Land Transfer Act, too has been complied with.

Having carefully considered the pleadings, evidence and oral submissions placed before this Court, it is quite possible to say that the Plaintiffs have satisfied the threshold criteria in Section 169 and 170 of the Land Transfer Act. The Plaintiffs have established a prima facie right to possession. Now the onus is on the Defendant to establish a lawful right or title under which he is entitled to remain in possession.

In the context of the present case, I am mindful of the rule of law enunciated in the following decisions;

In the case of Vana Aerhart Raihman v Mathew Chand, Civil Action No: 184 of 2012, decided on 30.10.2012, the High Court held;

"There is no dispute between parties as to the locus standi of the Plaintiff, and once this is established the burden of proof shifted to the Defendant to prove his right to possession in terms of the Section 172 of the Land Transfer Act."

In the case of Morris Hedstrom Limited –v- Liaquat Ali CA No: 153/87, the Supreme Court said that:-

"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 is mine)

Also it is necessary to refer to section 172 of the Land Transfer Act, which states;

"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, mortgage or lessor or 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:

Provided also that in the case of a lessor against a lessee, if the lessee, before the hearing, pay or tender all rent due and all costs incurred by the lessor, the judge shall dismiss the summons".

[Emphasis provided]

(8) What is the Defendant's reason refusing to deliver vacant possession?

I am once again reiterating paragraphs (03) – (09) of the Defendant's affidavit in opposition.

(3) That I was the beneficiary at the time my father Vishnu Deo aka Bisun Deogave consent to construct and extend my house and business shed in the Estate.

(4) That I was the beneficiary at the time my father Vishnu Deo aka Bisun Deo gave consent to construct and extend my house and business shed in the Estate. Attached and marked as Annexure 'RK1' is a copy of the letter by Salim Khan who is the Advisory Councillor confirming the same.

(5) That the Water and Electricity was under my name and responsibility, and I made continuous payments for water and electricity in the estate for a long period of time.

(6) That I have paid for the water and electricity bills which was authorised by my late father. Attached and marked as Annexure "RK2" are copies of the receipt and bills paid to the Fiji Electricity Authority and the Fiji Water Authority.

(7) That with the full consent of my late father, I have also constructed a borehole for the use of our whole family and my father. Attached and marked as Annexure "RK3" is a copy of the invoice from Borehole Drilling Company Ltd.

(8) That I was cultivating and farming sugar cane from my share of 2 acres under my father's estate under contract number 8715 since the year 1994 to 2008. Attached and marked as Annexure "RK4" is a letter dated 20th March, 2015 by the President/Sirdar of the LT43 Gang confirming the same.

(9) That I had the full consent and authority given by my late father to use and live on the said land since my birth.

(9) In adverso; the Plaintiffs forcefully submit;
[Counsel in his submission writes]

"The Defendant seems to be edging towards the application for proprietary estoppel. However, delivered Judgments have re-iterated that estoppel cannot be used as a basis to remain in possession of the property. If the Defendant suggests that promises were made by the Late Vishnu Deo and the Defendant acted on such promises and expended on the property, it is quite simply null and void and the Defendant must adopt other avenues, however we respectfully submit that remaining in possession of the property is illegal."

(10) After an in-depth analysis of the totality of the affidavit evidence in this case, I now summarise my understanding of the salient facts as follows;

➢ The land in question in this case is crown land within the meaning of Crown Lands Act.

➢ The land is leased by the Director of Lands to late "Vishnu Deo" on the 01st of January 2005 for 30 years at yearly rental of $400.00. It is a protected lease within the meaning of Crown Lands Act.

➢ The Plaintiffs and the defendant are the children of late "Vishnu Deo".

➢ The Defendant has been living in the father's land since birth.

➢ The Defendant's deceased father has granted verbal consent to the Defendant to extend and maintain the house in the land.

➢ The consent of the Director of Lands to the said "verbal consent" was neither "first had and obtained" nor has it ever been obtained.

➢ The "verbal consent" granted by the deceased's father was executed to the full by the Defendant by extending the house, erecting a farm shed and erecting a borehole in the father's land in the expectation and belief that he would be allowed to remain there for his life time or for so long as he wished.

➢ He bore a good deal of the expense himself.

➢ Moreover, the Defendant paid electricity and water bills. He cultivated the father's land. He had obtained an income from it.

➢ However, that by his will the testator, his deceased father, did not bequeath any right or benefit to him.

➢ His two brothers, the Plaintiffs, began proceedings against him as Executors and Trustees of the estate, by which they claimed that they are entitled to possession of the property.

(11) There are four problems that concern me. As I see it, four questions lie for determination by the Court. They are:

➢ Is the "verbal consent" granted to the Defendant by his deceased father to extend and maintain the house in the land a "dealing in land" within Section 13 of the Crown Lands Act?

➢ Whether the verbal consent is in breach of Section 13 of the Crown Lands Act?

➢ Is there any equitable estoppel or lien arising in the Defendant's favour on the land for the sum expended by the Defendant on the property?

➢ Is the occupation of the land for whatever length of time a circumstance giving rise to any form of proprietary estoppel or equity?

(12) The land in question in this case is a Crown Land within the meaning of Crown Lands Act. As such its control is vested with the Director of Lands. Therefore, it is necessary to examine Section 13 of the Crown Lands Act. I should quote Section 13 (1) which provides;

13.-(1) Whenever in any lease under this Act there has been inserted the following clause:-

"This lease is a protected lease under the provisions of the Crown Lands Act"

(hereinafter called a protected lease) it shall not be lawful for the lessee thereof to alienate or deal with the land comprised in the lease of any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever, nor to mortgage, charge or pledge the same, without the written consent of the Director of Lands first had and obtained, nor, except at the suit or with the written consent of the Director of Lands, shall any such lease be dealt with by any court of law or under the process of any court of law, nor, without such consent as aforesaid, shall the Registrar of Titles register any caveat affecting such lease.

Any sale, transfer, sublease, assignment, mortgage or other alienation or dealing effected without such consent shall be null and void."

Reading as best, I can between Sections of Crown Lands Act, it seems to me, that Section 13 (1) prohibits any dealing in land which is comprised in Crown Lease without the consent of the Director of Lands.

Moreover, unlawful occupation of Crown Land is an offense under Section 32 and 40 of the Crown Lands Act.

On a strict reading of Section 13 (1) of the Crown Lands Act, suggest to my mind, that the Act has a discernible protective or public policy purpose, namely the prevention in the public interest, of the uncontrolled alienation of crown land.

I do not think I need to read anymore!

The present case falls within the rule of law enunciated in the Privy Council decision of Chalmers v Pardoe, (1963) 3 A.E.R 552. In that case, Mr. Pardoe was the holder of a lease of Native Land. The Native land is subject to Section 12 (1) of the Native Land Trust Act which is in the exact same terms as Section 13 of the Crown Lands Act. Section 12 (1) provides;

"Except as may be otherwise provided by regulations made hereunder, it shall not be lawful for any lessee under this Act to alienate or deal with the land comprised in his lease or any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever without the consent of the Board as lessor or head lessor first had and obtained. The granting or withholding of consent shall be in the absolute discretion of the Board, and any sale, transfer, sublease or other unlawful alienation or dealing effected without such consent shall be null and void ...."

The leading case upon the interpretation of Section 12 of the Native Land Trust Act is Chalmers v Pardoe(supra).As earlier mentioned, Mr. Pardoe was the holder of a lease of Native Land. By a "friendly arrangement" with Mr Pardoe, Mr Chalmers built a house on a part of the land and entered into possession. The consent of the Native Land Trust Board was never obtained. The rule of law enunciated by the Privy Council was that the transaction amounted to an agreement for a lease or sublease but even regarding it as a licence to occupy coupled with possession and that a "dealing" with the land took place.

Returning to the present case, on the question as to whether the "verbal consent" can be a "dealing" within the meaning of Section 13 (1) of the Crown Lands Act, if any authority is required, I need only refer to the rule of law enunciated by the Privy Council in Chalmers v Pardoe(supra) where a somewhat similar situation as this was considered.

As to whether the "friendly arrangement" amounted to a "dealing" with native land within the meaning of s.12 of the Ordinance, Sir Terence Donovan, in delivering the speech of the Privy Council in Chalmers v Pardoe (supra), explained it as follows:

"Repeating this term, but without necessarily adopting it, the Court of Appeal held, as their lordships have already indicated, that the least effect which could be given to the "friendly arrangement" was that of a licence to occupy coupled with possession. Their lordships think the matter might have been put higher. "I gave him the land for nothing" said Mr Pardoe. Again, "He could get anything – a sublease or a surrender, which was perfectly correct..." And so on. In their lordships view an agreement for a lease or sublease in Mr Chalmers' favour could reasonably be inferred from Pardoe's evidence.

Even treating the matter simply as one where a licence to occupy coupled with possession was given, all for the purpose, as

Mr Chalmers and Mr Pardoe well knew, of erecting a dwelling-house and necessary buildings, it seems to their lordships that, when this purpose was carried into effect, a "dealing" with the land took place. On this point their lordships are in accord with the Court of Appeal: and since the prior consent of the Board was not obtained, it follows that under the terms of s.12 of the ordinance, cap 104, this dealing with the land was unlawful. It is true that in Harman Singh and Backshish Singh v Bawa Singh [ 1958-59] FLR 31, the Court of Appeal said that it would be an absurdity to say that a mere agreement to deal with land would contravene s.12, for there must necessarily be some prior arrangement in all such cases. Otherwise there would be nothing for which to seek the Board's consent. In the present case, however, there was not merely agreement, but, on one side, full performance: and the Board found itself with six more buildings on the land without having the opportunity of considering beforehand whether this was desirable. It would seem to their lordships that this is one of the things that s.12 was designed to prevent. True it is that, confronted with the new buildings, the Board as lessor extracted additional rent from Mr Pardoe: but whatever effect this might have on the remedies the Board would otherwise have against Mr Pardoe under the lease, it cannot make lawful that which the ordinance declares to be unlawful."

Returning to the present case, on the strength of the authority in the above case,, it is clear beyond question that the "verbal consent" was made into a "dealing on land" within the meaning of Section 13 (1) of the Crown Lands Act, by the following;

➢ The Defendant extended the house on the father's land, erected a farm shed and erected a borehole.

➢ The Defendant paid electricity and water bills.

➢ The Defendant cultivated the land.

In the context of the present case, I am mindful of the rule of law enunciated in the following decisions;

Henry J.P. in Phalad v Sukh Raj (1978) 24 FLR 170 said;

"The cases already cited show that the Courts have held that the mere making of a contract is not necessarily prohibited by section 12. It is the effect of the contract which must be examined to see whether there has been a breach of section 12. The question then is whether, upon the true construction of the said agreement the subsequent acts of appellant, done in pursuance of the agreement, "alienate or deal with the land, whether by sale transfer or sublease or in any other manner whatsoever" without the prior consent of the Board had or obtained. The use of the term "in any other manner whatsoever" gives a wide meaning to the prohibited acts. For myself I have no doubt but that the true construction of the said agreement and the said agreement and the substantial implementation of such an agreement for sale and purchase, under which possession is completely parted with to the purchaser and immediate mutual rights and liabilities are created in respect of such exclusive possession, is a breach of section 12 if done before the consent is obtained."

The words "alienate" and "deal with" as elaborated in section 12, are absolute and do not permit conditional acts in contravention. If before consent, acts are done pending the granting of consent, which come within the prohibited transactions, then the section has been breached and later consent cannot make lawful that which was earlier unlawful and null and void. This does not cut across the cases already cited which deal with the formation of the contract as contrasted with an immediately operative agreement and substantive acts in performance thereof."

Gould V.P in Jai Kissun Singh v Sumintra, 16 FLR p 165 said;

". . . .it is not necessary that the agreement between the parties should have progressed to a stage at which formal documents of lease or assignment has been executed before the transaction became a dealing requiring prior consent. That, having regard to the objects of the section, is only common sense. Otherwise, a purchaser under agreement could remain indefinitely in possession and control, exercising the rights of full ownership and even protecting himself by caveat. If an agreement is signed and held inoperative and inchoate while the consent is being applied for I fully agree that it is not rendered illegal and void by section 12. Where then, is the line to be drawn? I think on a strict reading of section 12 in the light of its object, an agreement for sale of native land would become void under the section as soon as it was implemented in any way touching the land, without the consent having been at least applied for ... ... ..."

(Emphasis Added)

In Chalmers v Pardoe [1963] 1 WLR 677 said;

"But even treating the matter simply as one where a licence to occupy, coupled with possession was given, all for the purpose, as Chalmers and Pardoe well knew, of erecting a dwelling house and accessory buildings it seems to their Lordships that when this purpose was carried into effect a "dealing" with the land took place."

Given the above, I am constrained to answer the first and second question earlier posed at Paragraph 12 in the affirmative.

(13) The Defendant contends that there is an equity arising out of the expenditure of money on father's land. He simplistically submits that he spent the money in the expectation and belief that he would be allowed to remain there for his life time or for long as he wished.

The submission requires some examination of the law regarding "Promissory or equitable estoppel."

Spry in his "Principles of Equitable Remedies" 4th Edition 1990 page 179 sets out the basic principles of equitable proprietary estoppel as follows:

➢ The Plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendants or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship.

➢ The Plaintiff has induced the defendant to adopt that assumption or expectation.

➢ The Plaintiff acts or abstains from acting in reliance on the assumption or expectation.

➢ The defendant knew or intended him to do so.

➢ The Plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled.

➢ The defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise.

Lord Kings down in the case of Ramsden v Dyson [1866] UKLawRpHL 7; (1865) L.R. 1 H.L. 129 said at p. 140;

"If a man under a verbal agreement with a landlord for a certain interest in land or what amounts to the same thing under the expectation created or encouraged by the landlord, that he shall have a certain interest, takes possession of such land with the consent of the landlord, and upon the faith of such promise or expectation with the knowledge of the landlord and without any objections by him, lays out money upon the land, a Court of Equity will compel the landlord to give effect to such promise or expectation."

Also at p. 140 Lord Cransworth L.C. said:

"If a stranger begins to build on any land supposing it to be his own and I perceiving his mistake, abstain setting him right, and leave him to persevere in his error, a court of equity will not allow me afterwards to assert my title to the land in which he had expended money on the supposition that the land was his own."

Promissory or equitable estoppel is described in Halsburys Laws of England, Fourth Edition, Volume 16, at paragraph 1514:

"When one party has, by his words or conduct, made to the other a clear and unequivocal promise or assurance which was intended to affect the legal 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 cannot afterwards be allowed to revert to their previous legal relations as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced."

Snell's Equity (13th Ed), at para 39 – 12 states that:

"Proprietary estoppel is one of the qualification to the general rule that a person who spends money or improving the property of another has no claim to reimbursement or to any proprietary interest in the property".

Proprietary estoppel, unlike promissory estoppel, is permanent in its effect. It is capable even of conferring a right of action. For it to apply there must exist essential elements or conditions. The Court, in Denny v. Jensen [1977] NZLR 635 identified four conditions namely, as p.638.

"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".

Megarry J in In re Vendervell's Trust (No. 2) [1974] CH 269 describes the essential elements this way, at p. 301,

"... the person to be estopped (I shall call him O, to represent the owner of the property in question), must know not merely that the person doing the acts (which I shall call) was incurring the expenditure in the mistaken belief that A already owned or would obtain a sufficient interest in the property to justify the expenditure, but also that he, O, was entitled to object to the expenditure. Knowing this, O nevertheless stood by without enlightening A. The equity is based on unconscionable behaviour by O; it must be shown by strong and cogent evidence that he knew of A's mistake, and nevertheless dishonestly remained wilfully passive in order to profit by the mistake".

In Denny v. Jensen [1977] 1 NZLR 635 at 639, Justice White very aptly summarised the doctrine as follows:-

"In Snell's Principles of Equity (27 ed) 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 that property. In Plimmer v Willington 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 decided in what way the equity can be satisfied" (9 App Cas 699), 714; NZPCC 250, 260). In Chalmers v Pardoe [1963] 1 WLR 677; [1963] 3 All ER 552 (PC) a person expending money was held entitiled to a charge on the same principle. The principle was again applied by the Court of Appeal in Inwards v Baker [1965]2 QB 29; [1965] EWCA Civ 4; [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 Salon LJJ agreed, said that all that was necessary:

"... is that the licencee 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).

(Emphasis Added)

Hon. Mr Justice Deepthi Amaratunga observed in Vishwa Nand v Rajendra Kumar (Civil Action HBC 271 of 2012) that;

"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. 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."

(Emphasis Added)

Hon. Madam Justice Anjala Wati in Wilfred Thomas Peter v HiraLal and Farasiko(Labasa HBC 40 of 2009) held that;

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

i. An expenditure

ii. A mistaken belief

iii. Conscious silence on the part of the owner of the land

iv. No bar to the equity

(14) In respect of Defendant's claim for an equitable charge or lien over the father's land for the sum expended on the property, the defendant heavily relied on the decision in "Wilfred Thomas Peter v HiraLal and Farasiko" (Labasa HBC 40 of 2009) and "Ali v Hussain" (2013) FJHC 685. I have considered the two judicial decisions. In "Ali v Hussain" the NLTB has played an active part in the transfer of the property and has consented to the transfer. But in the present case, the Director of Lands has never consented to the said "verbal consent" granted by the defendant's deceased father to the Defendant to extend and maintain the house in the leased land. In "Wilfred Thomas Peter v HiraLal and Farasiko" (supra) prior consent has been sought from the District Officer and the Minister of Lands before the subdivision, so Section 13 (1) of the Crown Lands Act has been fulfilled. Therefore, I do not think the said two decisions are of assistance to the Defendant because they are clearly distinguishable from the present case.

Strictly speaking, there must be a promise or recognition that the Defendant has some interest in the land. The Defendant must have spent money in reliance on that promise. I have traversed the Defendant's affidavit in opposition. He asserted that he was the beneficiary in the initial will and was omitted from the last will. This is in fact disputed by the Plaintiffs. Nevertheless, I can find no iota of evidence in the Defendant's affidavit that the initial will was made before the house was extended. A mere assertion is not sufficient. Therefore, I am constrained to hold that there is no evidence of any promise or recognition by the father that the son has some interest in the land. I can find no promise made by the father to the son that he should remain in the property. Therefore, in my view that the equity could not be raised. The Defendant gets no equity by reason of his expenditure on land.

Be that as it may, the verbal consent granted to the Defendant by his deceased father to extend and maintain the lease in the land lacked the consent of the Director of Lands. Therefore, the verbal consent is implicitly prohibited by Section 13 (1) of the Crown Lands Act.Thus the provisions of Section 13 of the Crown Lands Act has been breached.

The doctrine of estoppel cannot be invoked to render valid a transaction which the legislature has enacted to be invalid. [Chand v Prakash, 2011 FJHC 640, HB169. 2010]

Gates J (as then was) considered somewhat a similar situation in "Indar Prasad and Bidya Wati v Pusup Chand" (2001) 1 FLR 164 and said;

"Section 13 of the State Lands Act would appear to be a complete bar to any equitable estoppel arising in the Defendant's favour."

"Estoppel against a statute" is discussed as follows in Halsburys Laws of England, 4th Edition, Volume 16, at paragraph 1515,

"The doctrine of estoppel cannot be invoked to render valid a transaction which the legislature has, on grounds of general public policy, enacted is to be invalid, or to give the court a jurisdiction which is denied to it by statute, or to oust the court's statutory jurisdiction under an enactment which precludes the parties contracting out of its provisions. Where a statute, enacted for the benefit of a section of the public, imposes a duty of a positive kind, the person charged with the performance of the duty cannot be estopped be prevented from exercising his statutory powers. A petitioner in a divorce suit cannot obtain relief simply because the respondent is estopped from denying the charges, as the court has a statutory duty to inquire into the truth of a petition."

In Chalmers v Paradoe (supra) the court held;

"The friendly arrangement entered into between the respondent and the appellant amounted to granting the appellant permission to treat a certain portion of the land comprised in the lease as if the appellant were in fact the lessee. Under this arrangement the respondent gave the appellant possession of part of the land. He granted to the appellant permission to enjoy exclusive occupation of that portion of the land, and to erect such buildings thereon as he wished. Such an arrangement could we think be considered an alienation, as was argued in Kuppan v Unni. Whether or not it was an alienation it can, we think, hardly be contended that it did not amount to a dealing in land with the meaning of section 12. It is true that the 'friendly arrangement' did not amount to a formal sublease of a portion of the land or to a formal transfer of the lessee's interest in part of the land comprised in the lease. The least possible legal effect which in our opinion could be given to this arrangement would be to describe it as a licence to occupy coupled with possession, granted by the lessee to the appellant. In our opinion, the granting of such a licence and possession constitutes a dealing with the land so as to come within the provisions of section 12, Ca. 104. The consent of the Native Land Trust Board was admittedly not obtained prior to this dealing, which thus becomes unlawful and acquires all the attributes of illegality. An equitable charge cannot be brought into being by an unlawful transaction and the appellant's claim to such a charge must therefore fail."

On the strength of the authority in the above cases, I think it is quite possible to say that the mandatory requirement of Section 13 of the Crown Lands Act and the legal consequences that flow from non-compliance defeat the Defendant's claim for an equitable charge or lien over the land for the sum expended on the property.Therefore, I am constrained to answer the third question earlier posed at paragraph 12 negatively.

In the context of the present case, I am mindful of the rule of law enunciated in the following decisions;

In MISTRY AMAR SINGH v KULUBYA 1963 3 AER p.499, a Privy Council case, it was held that a registered owner of the land was entitled to recover possession because his right to possession did not depend on the illegal agreements in that case but rested in his registered ownership and as the person in possession could not rely on the agreements because of their illegality he could not justify his remaining in possession. That case "concerned an illegal lease of 'Mailo' land by an African to a non-African which was prohibited by a Uganda Statute except with the written consent of the Governor. No consent was obtained to the lease. After the defendant had been in possession for several years the plaintiff gave notice to quit and ultimately sued him for recovery of the lands. He succeeded.

Also in RAM KALI f/n Sita Ram and SATEN f/n Maharaj (Action No. 93/77) KERMODE J. expressed a similar view:-

"It is not necessary to determine whether there was an alleged sale as the defendant contends or a tenancy as the plaintiff alleges. Either transaction was illegal without the consent of the Director of Lands. ... While the plaintiff did disclose the illegal tenancy her claim for possession is based on the independent and untainted grounds of her registered ownership and she does not have to have recourse to the illegal tenancy to establish her case."

(15) The next point raised by the Defendant is that he has been living in the father's land since birth.

Is this circumstance capable of giving rise to any form of "proprietary estoppel"?

The answer to this question is obviously "No"

I echo the words of Fatiaki J in Wati v Raji [1996] FJHC 105;

"Turning finally to the question of 'proprietary estoppel'. Suffice it to say that the mere occupation of a piece of land on a yearly tenancy for whatever length of time, is not a circumstance capable of giving rise to any form of 'estoppel', proprietary or otherwise, nor in my view is any 'equity' created thereby which the court would protect.

(Emphasis added)

On the strength of the authority in the above case, I am constrained to answer the fourth question earlier posed at paragraph 12 negatively.

(16) In the above circumstances, it is clear beyond question that the Defendant has failed to show cause to remain in possession as required under Section 172 of the Land Transfer Act.

In the case of Morris Hedstrom Limited v Liaquat Ali, CA No, 153/87, the Supreme Court held,

"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 a right must be adduced." (emphasis is mine)

In Shankar v Ram, [2012] FJHC 823; HBC 54.2010, the Court held;

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 complete right to possession, if he can satisfy an arguable case for a right still he would be successful in this actin for eviction, to remain in possession.

Being guided by those words, I think it is right in this case to say that the Defendant has failed to adduce some tangible evidence establishing a right or supporting an arguable case for such a right.

Given the above, I certainly agree with the sentiments which are expressed inferentially in the Plaintiffs submissions.

(17) Before parting with this case, suffice it to say that the Defendant's assertion will not stand as, Section 59 (d) of the indemnity, Guarantee and bailment Act (Cap 232) states that no action shall be brought upon any contract or sale of lands or any interest in them unless the agreement upon which such action is brought or a memorandum thereof is in writing. Quite plainly this provision is designed to prevent fraud.

No such writing is in evidence in the present case. There is no shred of evidence tending to establish such writing. Accordingly, the verbal consent pleaded by the Defendant is invalid and unenforceable.

For the sake of completeness, section 59 (d) of the act is reproduced below.

59. No action shall be brought-

(a) ...........................

(b) ...........................

(c) ...........................

(d) upon any contract or sale of lands, tenements or hereditaments or any interest in or concerning them; or

(e) .......................................

Unless the agreement upon which such action is to be brought or some memorandum or note thereof is in writing and signed by the party to be charged there or some other person thereunto by him lawfully authorised.

(Emphasis added)

(D) CONCLUSION

Having had the benefit of written submissions for which I am most grateful and after having perused the affidavits and the pleadings, doing the best that I can on the material that is available to me, I have no hesitation in holding that the Defendant has failed to show cause to remain in possession as required under Section 172 of the Land Transfer Act.

In the circumstances, it is my considered view that the Plaintiffs are entitled to an order as prayed in Summons for immediate vacant possession.

(E) FINAL ORDERS

(1) I order that Defendant to deliver immediate vacant possession of the land described in the Originating Summons, dated 13thJanuary 2015.

(2) The Defendant is ordered to pay costs of $1,000.00 (summarily assessed) to the Plaintiffs which is to be paid within 14 days from the date hereof.

Jude Nanayakkara
Acting Master of the High Court

At Lautoka
31st July 2015