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Singh v Prasad [2016] FJHC 790; HBC295.2015 (5 September 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION


Civil Action No. HBC 295 of 2015


IN THE MATTER of an application under Section 169 of part XXIV of the Land Transfer Act, Cap. 131 for an Order for immediate vacant possession.


BETWEEN: DEEP SINGH of Razak Road, Lautoka.


PLAINTIFF


AND: DEVINA DEVI PRASAD of Lot 23, Nakunuku Place, Navosai.


DEFENDANT


BEFORE: Master Vishwa Datt Sharma

COUNSELS: Mr. Kumar. P - for the Plaintiff

Ms. Kean. T - for the Defendant


Date of Hearing: 06th June, 2016

Date of Ruling: 5th September, 2016


RULING
(Application seeking Vacant Possession pursuant to
s169 of the Land Transfer Act Cap 131)


INTRODUCTION


  1. The Plaintiff filed the Originating Summons on 01st September, 2015 and sought for the following orders:
  2. There are 2 (Two) affidavits filed before the Court:
    1. Affidavit in Support of Deep Singh filed on 01st September, 2015 (“Plaintiff’s Affidavit”);
    2. Affidavit in Opposition of Devina Devi Prasad filed on 19th November, 2015 (“Defendant’s Affidavit”);
  3. The proceedings was heard on a defended basis and therefore this court has to determine the pending issue in terms of the laws provided for in ss169, 171 and 172 of the Land Transfer Act [Cap 131].

THE LAW


  1. The application is filed in terms of s.169 of the Land Transfer Act [Cap 131] which provides as follows:

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


  1. Pursuant to section 172 of the Act the onus is on the Defendant to show cause why she refuses to give up possession to the Plaintiff and why an order for possession should not be made against her.
  2. In the case of Ram Narayan v Moti Ram (Civ. App. No. 16/83) Gould J.P. said:

"... the summary procedure has been provided in the Land Transfer Act and, where the issues involved are straightforward, and particularly where there are no complicated issues of fact, a litigant is entitled to have his application decided in that way."


  1. The procedure under s.169 is governed by sections 171 and 172 of the Land Transfer Act (Cap 131) respectively which stipulates 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."

(Underline is mine for emphasis)


  1. As far as the requirements in terms of section 172 are concerned, the Supreme Court in the case of Morris Hedstrom Limited v. Liaquat Ali (Action No. 153/87 at p2) said 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."


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

"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. There is accordingly nothing in section 172 which requires an automatic order for possession unless "cause" is immediately shown. (Emphasis added)


  1. In Premji v Lal [1975] FJCA 8; Civil Appeal No 70 of 1974 (17 March 1975) the Court of Appeal said:

‘These sections and equivalent provisions of the Land (Transfer and Registration) Ordinance (Cap. 136-1955 Laws of Fiji) have been considered in a number of cases in this court and the Supreme Court. In Jamnadas & Co. Ltd. v. Public Trustee and Prasad Studios Ltd. (Civil Appeal No. 39 of 1972 - unreported) this court said –

‘Under Section 172 of the Act the Judge is required to dismiss the summons if the respondent proves to his satisfaction a right to possession ...’


  1. Under Section 172 of the Act the judge is empowered to dismiss the summons if the respondent proves to her satisfaction that she has a valid defence, a right to possession, locus standi and or a licence. It further provides that a judge may make any order and impose any terms that he may think fit. The dismissal of the summons is not to prejudice the right of a Plaintiff to take any other proceedings to which he may be otherwise entitled.
  2. Reference is made to the case authorities of Caldwell v. Mongston (1907) 3 F.L.R. 58 and Perrier Watson v. Venkat Swami (Civil Action 9 of 1967 - unreported) wherein the Supreme Court held-

‘that if the proceedings involve consideration of complicated facts or serious issues of law, it will not decide the cases on summary proceedings of this nature, but will dismiss the summons without prejudice to the Plaintiff’s right to institute proceedings by Writ of Summons.’


Plaintiff’s Case


  1. The Plaintiff’s Affidavit filed in this case deposed as follows:

Defendant’s Case


  1. The Affidavit in Response deposed by the Defendant states as follows:

ANALYSIS and DETERMINATION


  1. The question for this court to determine is whether the Plaintiff is entitled to the vacant possession of the premises on the land comprised and described on Native Land No. 22721 Navosai Subdivision Lot 175 as Shown Lot 23 on SO. 2563, of which the Plaintiff is the registered proprietor or Lessee of in terms of s.169 of the Land Transfer Act Cap 131?
  2. In this case, the Plaintiffs must first comply with the requirements of section 169 of the Land Transfer Act cap 131, which are stated hereunder as follows:

(Underline for emphasis)


  1. In this instance, the first limb of s169 applies; there is no dispute that the Plaintiff is the registered Lessee or a proprietor in this instant case.
  2. In this respect the plaintiff has annexed in his affidavit a certified true copy of the Native Lease No. 22721.

The Native Lease No 22721 clearly shows that the Lease was transferred to the Plaintiff by a Mortgagee sale on 10th April, 2002.


  1. The term “Lessee” is defined as proprietor of a Lease or sub lease in the Land Transfer Act. Therefore, the term “Lessee” follows within the ambits of section 169 application.
  2. The Plaintiff is for the purposes of section 169 the last registered proprietor and Lessee of the said property.
  3. After the Plaintiff has established the first limb test of section 169 that is that the Plaintiff is the registered proprietor and Lessee of the property, then the Defendant bears the onus of showing cause as to why vacant possession should not be granted to the Plaintiff.
  4. Pursuant to section 172 of the Land Transfer Act Cap 131. The Defendant needs to satisfy this court on affidavit evidence that she has a right to possession. (Case of Muthusami v Nausori Town Council F.C.A. 23/86 refers).
  5. There is no need to prove conclusively a right to possession and it is sufficient for the Defendant to prove that there is some tangible evidence establishing the existence of a right or of an arguable defence. (Case No. 152 of 1987- Morris Hedstrom Ltd v Liaquat Ali refers).
  6. Sections 39-42 of the Land Transfer Act, and under the Torrens system of land registration which operates in Fiji, the title of the registered proprietor is indefeasible unless actual fraud is proved. (Case of Subramani v Sheela [1982] FJCA 11; [1982] 28 FLR 82 (2 April 1982); Assets Company Ltd v Mere Roihi [1905] UKLawRpAC 11; [1905] AC 176 at p. 210; Fels v Knowles 26 N.Z.L.R. 608, at p 620 refers).
  7. In Subramani (supra) the Fiji Court of Appeal (per Gould V.P.’ Marsack, J.A., and Spring J.A.) states as follows-

‘The indefeasibility of title under the Land Transfer Act is well recognized; and the principles clearly set out in a judgment of the New Zealand Court of Appeal dealing with provisions of the New Zealand Land Transfer Act which on that point is substantially the same as the Land Transfer Act of Fiji. The case is Fels v Knowles 26 N.Z.L.R. 608. At page 620 it is said;-

“The cardinal principle of the statute is that the register is everything, and that, except in case of the actual fraud on the part of the person dealing with the registered proprietor, such person, upon registration of the title under which he takes from the registered proprietor, has an indefeasible title against all the world.”


Proprietary Estoppel


  1. The Defendant raised the defence of Proprietary Estoppel stating-

“....Upon living on the property after being chased from Lautoka in 2008, the Defendant spent a lot of money and made a lot of payments towards the house and even did improvements to the house.....also the Plaintiff gave a letter allowing her to stay on the said property and in his affidavit confirms the same.. ”


  1. In Denny v Jessen;[160; [1977] 1 NZLR 635 at 639proprietary estoppel as follor>

p>"In Snell's Principles of Equi7th e5 it is stated that proprietary estoppel is "... "... capable of operating positively so faso far as to confer a right of action". . In Plaimmer v Weton City Coty Corporation (19 App Cas 699; NZPCC 250 250 it was stated by the Privy Council that "...the equity arising from expenditure on land need ail m on the ground that the interest to be secured haed has not been expressly indicated."(ibid(ibid, 713, 29). After referring to the cases, including Ramsden vn (;[1866] UKLawRpHL 7; (1866) LR 1 HL 129 /u>, 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 260). In Chalmers v rs v Pardo[19u>[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 uilt on land owned by his father who died leaving his estate to others. Lonning MR, with whom DanckDanckwerts and Salmon L JJ agreed, said that all that was necessar>


"... is that the licensee should, at that 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).


  1. Reference is made to the case of Wilfred Thomas Peter v Hira Lal and Frasiko; HBC 40 of 2009 where Her Ladyship Justice Wati said:

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


i. An expenditure;

ii. A mistaken belief

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

iv. No bar to the equity


  1. The Defendant submitted the following in order to satisfy this court on the Four (4) conditions of the proprietary test-
    • (i) Expenditure- The Defendant submitted ‘that paragraphs 13, 15, 18, 19 and 21 of the Defendant’s affidavit filed on 16th October, 2015 mentions that she spent a lot of money, made payments and did a lot of improvements towards the said house.’
    • (ii) Mistaken Belief- the Defendant submitted ‘that it is evident from her affidavit that at all times she was under a mistaken belief that she was allowed to reside on the said property with the children and improve the house. Further as per the Family Magistrates Court order that she was not to be removed from the property until the final determination of the property matter.’
(iii) Conscious silence on the part of the Plaintiff- The Defendant submitted ‘that it was evident from the Defendant’s affidavit as well as the Plaintiff’s reply Affidavit at paragraph 12c, that the Defendant had been in occupation of the said property for over 6 years without there being any eviction by the Plaintiff and even when parties were married, they used to reside on the said property. The Plaintiff only issued a notice to vacate 6 years later. Stating further, the Plaintiff willfully remained silent especially when the Defendant went on to extend the home which therefore showed their tacit approval of her occupation on the said property. The failure on the part of the Plaintiff to take action against the Defendant clearly demonstrates that the Plaintiff had willfully stood by and encouraged the mistaken belief on the part of the Defendant that he had an unfettered right to reside on the said property.’
(iv) No Bar to Equity- The Defendant referred the case of Blue Latitude Ltd supra Snell’s Equity at page 576 (29th Edition 3rd Impression 1994) under ‘No bar to equity’ which stated as follows:

“No equity will arise if to enforce the right claimed would contravene some statute, or prevent the exercise of a statutory discretion or prevent or excuse the performance of a statutory duty.”


The Defendant stated that in the instant case, no statute or performance of a statutory duty will be contravened if equity arises.


  1. The Defendant further submitted that’ she was allowed verbally to improve and make improvements to the property but at her own cost and that is what she did. There was no written agreement and contract and no issues for Defendant to reside on the property.’
  2. On the other hand, the Plaintiff submitted as follows-
    • (i) Expenditure - The Plaintiff submitted that the improvement made on the property was without the consent and authority of the Plaintiff. The Defendant neither consulted nor advised the Plaintiff about any improvements on his property. Further, he stated that there was no promise made by the Plaintiff to the Defendant to reside in his house and pay the town rates and land rent. The Plaintiff did not give consent to the Defendant to improve or renovate his property. Therefore, the principle of Promissory Estoppel does not apply to the Defendant. Also Estoppel cannot be pleaded against the Plaintiff.
    • (ii) Adverse Possession - The Plaintiff submitted that the Defendant has been living forcefully in the property after the Nasinu Family Magistrate’s Court and Suva Family High Court dealt with the property issue.
  3. It is noted that the Plaintiff did not think appropriate to submit on the remaining three (3) conditions of the proprietary test but submitted otherwise as contained in his written submissions.
  4. I will now deliberate on the aforesaid arguments raised by both parties to the proceedings in terms of the Defence of Proprietary Estoppel.
  5. The Plaintiff’s contention has been that at no time he made any promises nor gave any consent to the Defendant to carry out the improvements to the property as has been outlined by the Defendant and therefore, the Principle of Estoppel does not apply in this case as pleaded by the Defendant and the Plaintiff is entitled to have an order for vacant possession.

As far as the Defendant is concerned, the Plaintiff allowed her to reside on the property and she carried out the improvements and expenditure as outlined by her in her affidavit. Further, the Plaintiff continuously remained silent which caused the Defendant to have a mistaken belief of her right to reside on the property and therefore, her contention is that she is entitled to reside on the property accordingly.


  1. It is also pertinent to note that there was a Family case initiated by the Defendant (Wife) with regards to the same property for which the Plaintiff is now seeking for an order for vacant possession.

The related Nasinu Family Magistrate’s Court matter on Alteration of Property Interests and a subsequent appeal decision of the Family High Court in Suva, reference nos. 08/NAS/0931 and 12/SUV/0004 refers respectively.


  1. On 27th February, 2009, the wife (The Defendant in this case) filed an application for distribution of the property of the parties to the marriage. The application related to the single storey wooden house with 3 bedrooms with all amenities situated at lot 22 Narere, Navosai (The same property as in this case) and the FNPF monies of the Respondent (The Plaintiff in this case).
  2. The Family Magistrates Court heard the application on distribution of property on 17th February, 2010 and subsequently made an order of 50% distribution on the wife’s (Defendant’s) contribution as a homemaker parent and her financial and non-financial contributions towards the house on the Native Land (the property in this case).
  3. The wife (Defendant in this case) appealed the Family Magistrate’s Court decision and after a hearing and determination a ruling was delivered on 05th September, 2013.

The appeal was dismissed and the Family High Court affirmed the orders of the Family Magistrate’s Court. Further the Family High Court extended the orders to include that if FNPF is able to transfer the 50% of the monies in the husband’s (Plaintiff in this case), account as at 17th February, 2010, the wife’s (Defendants) account then such exercise may be undertaken by the FNPF otherwise the orders of the lower Court is to be complied with.


  1. I also note from the annexure marked ‘DP8 (a)’ within the affidavit in opposition of the Defendant that there is a Family Magistrate Court order made on 01st March, 2011 – “that the Respondent (Plaintiff) is hereby ordered not to remove the Applicant lady (Defendant) and the 2 children of the marriage from the property located at Lot 23, Nukunuku Place, Narere, Navosai until the determination of the property matter.’ (underline is mine).

The Court order as per annexure ‘DP8 (a)’ would have lapsed after the Family High Court delivered its ruling on 01st March 2011 and therefore the Defendant should have moved out of the said property . She continued to reside on the property and now claims that the Plaintiff gave her promise and allowed her to reside on the property and therefore she has carried out certain improvements and incurred expenditure to the property on the mistaken belief that the Plaintiff has remained silent and would not seek an order for a vacant possession.


However, there is no concrete evidence to what she has stated hereinabove apart from the fact that she had paid the Town Council rates and bought hardware material as per invoices annexed within her affidavit whilst she resided on the property.


In Snell's Principles of Equity- ‘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.’


The Family Magistrate’s Court as well as the Family High Court, on appeal, has made a final decision on the property matter and that is the reason why the Plaintiff has now commenced the current proceedings seeking an order for a vacant possession against the Defendant (Wife). I therefore find in terms of the Family Court’s initial interim order and the final Decision that the Defendant (Wife) cannot continue to reside on the said property since the property matter by the Family Court has been finalized.


  1. Finally, the Defendant was aware of the fact that the Family Magistrate’s Court had granted an interim order that the Plaintiff (Husband) not to remove the Defendant (Wife) from the property until the final determination of the property matter. Further, if she thought that the Plaintiff (Husband) had given any promise to her in terms of the occupation of the said property or premises, then why did she not think appropriate and important that in the said circumstances she should have made an appropriate application for a ‘Vesting Order’ and seek a legal interest and entitlement to the property in occupation, rather she thought fit and proper to continue with the occupation of the said premises in the manner that she did and is now faced with an application for vacant possession by the Plaintiff (Husband), accordingly.
  2. For the aforesaid rational, I find that the property comprised and described on Native Land No. 22721, Navosai Subdivision, Lot 175 as Shown Lot 23 on SO. 2563 was transferred by the mortgagee sale to the Plaintiff on 10th April, 2002 as the lessee and the registered proprietor. Thus, the Plaintiff being the owner of the property in question on the Native Lease No 22721.
  3. The defendant has failed to show any cause including a right to possession or has tangible evidence establishing a right or supporting an arguable case for such a right that must be adduced in terms of section 172 of the Land Transfer Act Cap 131.
  4. There is accordingly nothing in section 172 which requires an automatic order for possession unless "cause" is immediately shown.
  5. Further, the Defendant has failed to satisfy this court on the four (4) limb test for the proprietary estoppel which she raised in her Defence.
  6. Following are the final orders of this court.

FINAL ORDERS


  1. The Defendant to give vacant possession of the premises on the land comprised and described on Native Land No. 22721, Navosai Subdivision, Lot 175 as Shown Lot 23 on SO. 2563 to the Plaintiff.
  2. The Defendant to deliver vacant possession to the Plaintiff in one (1) month’s time on or before the 5th October, 2016.
  1. Execution is hereby suspended till the 5th October, 2016.
  1. There will be no order as to Costs made against the Defendant since she is represented by the Legal Aid Commission.

Dated at Suva this 5th day of September, 2016


...............................................................
MR VISHWA DATT SHARMA

Master of High Court, Suva


cc: M. A. Khan Esq., Suva

Legal Aid Commission, Suva.


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