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IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
ACTION NO. HBC0015 OF 1984
BETWEEN:
SURYA MUNIDIAL BIDESI
son of Bidesi of Waimanu Road, Suva, Fiji,
Businessman, as executor and trustee of
RAM DEO NATH
Plaintiff
AND:
PUBLIC TRUSTEE OF FIJI
of Government Buildings, Suva, as executor and trustee of the
Estate of BIDESI son of Chuman
Defendant
S.R. Shankar: For the Plaintiff
J.Ggh and P. Sharma: For the Dthe Defendant
Dates of Hearing: 23rd August, 10th September, 12th, 22nd October 1993, 24th March, 7th April 1994
Date of Interlocutory Judgment: 10th June 1994
INTERLOCUTORY JUDGMENT
By Summons dated 24th of February 1993 presently before the Court the Defendant applies for the dismissal of this action for want
of prosecution. The Writ in these proceedings was issued on the 18th of May 1984 but the history of the matter goes back further
to the 15th of November, 1957 when the father of the Plaintiff died in Suva leaving a Will dated the 18th of April 1957.
On the 17th of July 1961 in Action No. 138 of 1961 in the then Supreme Court of Fiji one Ram Deo of whose estate the present Plaintiff
is the executor and trustee issued an Originating Summons against the Public Trustee of Fiji and the widow and various children of
the deceased Bidesi seeking the following relief, namely:
(1)That the Public Trustee as Executor and Trustee of the Will of Bidesi, be ordered to convey a piece of land comprising an area
of 2 roods 21 perches being Lot 1 on Deposited Plan No. 2527 being part of Certificate of Title No. 4155 to Ram Deo in terms of a
verbal promise made to him by his father-in-law the deceased Bidesi before his death.
(2) That the Registrar of Titles be directed to make an entry in the Register of Titles to give effect to the order requested in (1).
To understand the present proceedings it is necessary to refer briefly to the affidavits sworn and filed in the 1961 proceedings and
to the record of the Court concerning them which I have been able to obtain from the National Archives.
Ram Deo swore an affidavit stating that he was a Builder and the son-in-law of the late Bidesi having married his daughter Suraj Kumari.
He stated that Probate of Mr. Bidesi's Will was granted on the 21st of April 1959 to the Public Trustee of Fiji and that there was
no mention in the Will of any bequest to Ram Deo.
He deposed that prior to Bidesi's death he made Ram Deo an outright gift of an area of freehold land in Tamavua at Mead Road comprising
2 roods 21 perches in order to enable Ram Deo to build his own home thereon.
That he built on the land a home costing over £3,000 (Three Thousand Pounds) which he occupied with his family. In order to assist
him to build his home cheaply his father-in-law permitted him to buy the necessary building materials through the firm of Bidesi
& Sons at cost price, the amount of which was debited against Ram Deo's name in the firm's books. He deposed that his father-in-law
promised to transfer the freehold title to him upon the debit balance with the firm being paid off. His father-in-law died before
the debt could be paid off and on the date he swore his affidavit, the 2nd of May 1961, Ram Deo said that he still owed a sum of
£3,527.1.4.
He stated that his father-in-law's intention to give him the land was well known to all the members of his family including his widow
and all the adult members had joined in signing an acknowledgement to this effect.
He finally deposed that his request to the Public Trustee to transfer the land to him had been refused on the ground that there was
no specific demise of the same in the Will and that there were several infant beneficiaries who were unable to sign the acknowledgement
of gift made by their father.
The second affidavit sworn in support of Ram Deo's application was by Surya Munidial Bidesi also on the 2nd of May 1961. He stated
that before his father's death he worked as the Manager of the firm of Bidesi & Sons, Contractors. In that capacity he was in
his father's confidence and was aware of all transactions made by the firm.
Some time prior to his death, his father permitted Surya Munidial Bidesi's brother-in-law, Ram Deo to construct his home on a block
of land which he gave him as a gift. In order to assist Ram Deo still further he permitted him to purchase all his building materials
from the firm at cost price, the cost of such materials being charged to his account.
He stated that it was his father's intention to execute a formal transfer of the block to Ram Deo as soon as the debt was liquidated.
That his father died suddenly and before the debt could be liquidated. He stated that he knew his father gave the land to Ram Deo
as a gift because he told him so.
He finally deposed that it would be an injustice to compel Ram Deo to demolish his valuable concrete building just because his father
had omitted to give effect to his promise in his Will.
Earlier on the 28th of January 1961 a document had been filed by the then three adult members of the family of the late Bidesi acknowledging
that before his death he made an outright gift of an area of land at Mead Road, Tamavua to Ram Deo as a house site and permitted
him to build his home thereon and did not charge him any rent.
The Originating Summons first came before Acting Chief Justice Hammett on the 18th of August 1961 when all the parties were represented.
At that time seven of the children of Bidesi deceased were minors. According to the record of the proceedings of that day Acting
Chief Justice Hammett remarked that he would not be willing to grant the Plaintiff's petition even if every one consented, since
there were infants involved unless either the Petitioner (sic) settled the debts of the Estate or the Petitioner agreed to execute
a mortgage over the property to secure the debt.
At that point counsel for the Plaintiff Mr. Jamnadas sought an adjournment. Counsel for the Public Trustee, the late Mr. Marquardt-Gray,
agreed and the Acting Chief Justice then adjourned the proceedings sine die with liberty to apply to restore the case to the list
to all parties. Costs were reserved.
The matter next came before the Court again on the 24th of November 1961 when the Acting Chief Justice gave leave to the Plaintiff
to serve two of the Defendants in Australia. The matter was then adjourned to the 12th of January 1962 when it came before Mr. Justice
Knox-Mawer in chambers. Again all the parties were represented. I propose to quote the record of that day so far as possible in full
because it has assisted me in reaching my decision in the present Defendant's application. It reads thus:
"Jamandas (counsel for the Plaintiff): Plaintiff is willing to give a mortgage on the property back to the Bidesi Estate to secure
Ram Deo's debt to the Estate.
Ramrakha (counsel for four of the minor Defendants): Infants have no objections provided this can by done in law.
Gray: The land involved is part of Bidesi's Estate of which Public Trustee is executor.
Public Trustee cannot part with the land.
An incomplete gift - land under the Torrens System.
Public Trustee: Trustee cannot consent to parting with property which he holds in trust for inter alia, minor beneficiaries. If all
the beneficiaries were of full age and all wished to make a present of this part of their beneficial interest it would be a different
matter. The Public Trustee cannot consent.
Court: In that case the Summons must be dismissed.
The Public Trustee is awarded costs against the Plaintiff/Applicant.
Sgd.
R. Knox-Mawer Ag. J.
2.2.62"
A formal order was then taken out by the Public Trustee.
Eventually the costs of the proceedings were taxed but nothing appears to have been done by either the Public Trustee or any of the
other beneficiaries at that time. Instead Ram Deo remained in possession of the land in Mead Road until about the 26th of November
1982 when Public Trustee commenced ejectment proceedings against one of the children of Ram Deo and two other (presumably relatives)
of him.
These proceedings were heard by Kermode J.
In a judgment given on 7th of June 1983 the judge remarked, "None of the Defendants have been able to show any legal or equitable
right to be in occupation of the land". Later His Lordship remarked that he was not concerned to consider whether Ram Deo's
executor (the present Plaintiff) had any legal or equitable interest in the property or whether the estate was entitled only to compensation.
He then repeated that none of the Defendants could show any legal right to remain in occupation since the Public Trustee had terminated
any licence they had to remain in occupation.
He accordingly made an order for vacant possession in favour of the Public Trustee.
The Defendants successfully appealed the decision of Kermode J. to the Court of Appeal which in a short judgment on the 16th of November
1983 said that the effect of the judgment in the Supreme Court was that the Defendants, who had been in possession for a long time
had no legal right to remain in occupation. The Court of Appeal stated that Ram Deo had built a substantial home on the land which
at the date of judgment was worth approximately £40,000. The Court then said there was an abortive proceeding commenced in 1961 but
it need not be considered at the present time. The Court remarked on page 2 of its judgment that all the Defendants had long been
in possession without paying rent and that there had been possession adverse of Bidesi and his legal representative. The Court said
no one had taken steps to prove any right and that the hand of Public Trustee had been forced. The Court then went on, referring
to the argument of the Public Trustee that there was an imperfect gift which conferred no rights, that it was clear and seemed to
be borne out by the known facts, that the alleged gift was accompanied by possession and the building of substantial premises while
the owner stood by. There had been long delay but also long acquiescence in possession without payment of any kind for such possession.
In the circumstances the Court said that they considered that a peremptory order for possession ought not to have been made, that
a reasonable opportunity should be afforded to the beneficiaries of Ram Deo to obtain administration of his estate and initiate and
prosecute with due diligence such action as they might be advised to take.
Accordingly the Court set aside the order for immediate possession and, in lieu thereof, ordered that the proceedings be adjourned
for six months. The Court directed the Defendants to undertake forthwith the necessary steps to obtain legal representation and to
commence action within that time.
The Defendants did not commence proceedings immediately and on the 16th of April 1984 the solicitors for the Public Trustee wrote
to their solicitors reminding them of the Court of Appeal order and giving them until the 21st of May 1984 to commence any action.
As I said at the beginning the present Writ was issued on the 18th of May 1984.
The Statement of Claim annexed to the Writ alleged that the deceased Bidesi had consented to and encouraged Ram Deo to build a substantial
dwelling house on the land and also alleged that the Public Trustee was holding on behalf of Ram Deo an amount in excess of $25,000.
The Plaintiff sought a number of orders only four of which are relevant here:
(a) A declaration that the Defendant is estopped from denying title to the estate in the land to the Estate of Ram Deo;
(b) An order that the Defendant convey the land to the Plaintiff for the estate to Ram Deo;
(c) An order that the Defendant render a full and proper account of the funds held by him on behalf of the Estate of Ram Deo and pay
the same together with all interest due to the Plaintiff;
(d) An order or declaration that the Defendant is holding the land in trust for the Plaintiff and the Defendant has acquiesced in
the possession.
The Defence was delivered promptly on the 31st of May 1984. It denies any gift by the late Bidesi of the land in question or any encouragement
by Bidesi to Ram Deo to build a house on the land.
Paragraph 4 of the Defence refers to the relief sought by Ram Deo in the earlier Supreme Court proceedings No. 138 of 1961.
Paragraph 5 states that the action was dismissed with costs.
The Defendant denies that he is holding any trust money belonging to Ram Deo which is in excess of $25,000 and claims to be the registered
proprietor of the land under the Land Transfer Act.
Nothing further was done in the action until the 24th of February 1993 when the Public Trustee issued the present Summons seeking
dismissal of the action for want of prosecution. In an affidavit sworn one month later on the 24th of March 1993 the Public Trustee
claims that he has been greatly prejudiced in his defence due to the long delay by the Plaintiff and claims that at the present time
there is no chance of a fair trial in view of the events alleged to have occurred in 1961 and prior thereto. He also alleges that
the recollections of any witness as to the events that occurred in 1961 or prior thereto are now seriously impaired.
The Plaintiff resists the application to dismiss. In an affidavit sworn on the 21st of April 1993 he states (wrongly), that all the
beneficiaries authorised the Defendant to execute a transfer in favour of Ram Deo. A reference to the earlier proceedings will show
that this statement is not true in that only all the adult beneficiaries so consented. The Plaintiff claims that the Public Trustee
did nothing for twenty-one years from 1961 until November 1982 when he instituted the ejectment proceedings and that the property
was occupied by Ram Deo and his children until he departed for Canada in 1979 and his other beneficiaries are still occupying the
property.
The Plaintiff then refers to the military coup of the 14th of May 1987 and the problems and delays in the Courts which the coup caused.
The Plaintiff denies that the Public Trustee has suffered any prejudice because he claims that most the Plaintiff's evidence is in
writing along with the evidence of physical construction of the premises which is tangible proof of the Plaintiff's claim.
The Plaintiff accepts that there has been some delay since 1984. He claims that this has been compounded by the inaction of the Defendant
in responding to a letter written by the Plaintiff's solicitor on the 10th of April 1984 claiming that the Court of Appeal in its
judgment of the 16th of November 1983 had held that the estate of Ram Deo had established a legal right in the Plaintiff to possession
of the land.
This claim is of course not true as a reading of the Court of Appeal judgment shows and in my view also it does not assist the Plaintiff
to claim that the Defendant did nothing for twenty years between 1961 and 1982. In any event in an Affidavit in Reply by the Defendant
this allegation is denied and there is a reference to various High Court actions and an appeal to the Privy Council concerning the
estate in all of which the Public Trustee was involved.
The Plaintiff also claims that the Court file in relation to this action has been lost or mislaid for some time and that a duplicate
file has been resurrected.
There appears to be some merit in this claim as the present Court file consists of only photocopies of the pleadings and other documents.
The Defendant also alleges that a Mr. D.P. Singh who was Assistant Public Trustee of Fiji at the relevant time has migrated overseas
which has prejudiced the Defendant in his defence.
I have received comprehensive and helpful written and oral submissions by the parties and I now come to consider these.
Counsel for the Defendant first submits that the present proceedings are governed by the principle of Res Judicata. He submits that
the present action is very similar to that dealt with in the earlier Supreme Court Action No. 138 of 1961 in that the property is
the same; the subject matter in dispute is the same; it came in question before a Court of competent jurisdiction and the result
was conclusive so as to bind every other Court. Counsel submits that Knox-Mawer J. was correct in dismissing Ram Deo's claim because
he clearly accepted the submission of Mr. Marquardt-Gray that the Court could not perfect an imperfect gift.
I accept that statement as correct, being in accordance with the remarks in paragraph 784 of Halsbury's Laws of England, 4th Edition,
Volume 16 which reads:
"Imperfect gifts not assisted." Equitable interests in property may be created in favour of volunteers, but a court of equity
does not interfere to perfect an imperfect gift. In order to render a voluntary settlement valid and effectual the settlor must either:
(1) have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done to transfer
the property, and to render the settlement binding on him; this is effected when he actually transfers his own interest in the property
to the donee or to trustees for the donee; or
(2) while retaining the property in himself, have declared himself to be a trustee of it for the donee.
The Court does not, however, treat an imperfect gift by way of transfer as a declaration of trust."
It is submitted that the deceased Bidesi failed to transfer the land to Ram Deo during his life time and the Supreme Court could not
in Civil Action No. 138 of 1961 make an order compelling the Defendant, the Public Trustee of the estate of Bidesi, to transfer the
land to Ram Deo, since this would be contrary to law.
Further it is submitted, if Ram Deo felt the Supreme Court had erred in law in dismissing his application, he could have appealed
that decision, but did not. Counsel then relies on the statement by Millet J. in Crown Estate Commissioners v. Dorset County Council (1990) 1 ALL E.R., 19 at page 23 between paragraphs F and G on Res Judicata that:
"Res judicata is a special form of estoppel. It gives effect to the policy of the law that the parties to a judicial decision
should not afterwards be allowed to relitigate the same question, even though the decision may be wrong. If it is wrong, it must
be challenged by way of appeal or not at all. As between themselves, the parties are bound by the decision, and may neither relitigate
the same cause of action nor reopen any issue which was an essential part of the decision."
It is then submitted that since the decision under Civil Action No. 138 of 1961 was not challenged, the parties in that matter are
bound by that decision.
When beginning my preparation of this judgment I recalled the decision of the English Court of Appeal in SCF Finance Co. Ltd. v. Masri and Another (No. 3) (1987) 1 ALL E.R. 194 which seemed to me to have some possible relevance to the instant case and I therefore invited additional submissions with particular
reference to that decision.
In SCF Finance Co. Ltd. v. Masri and Another the Plaintiffs obtained a Mareva Injunction against the Defendant, a Jordanian national. The assets made subject to the injunction
included a dollar bank account in the name of the Defendant's wife, who applied to have the injunction set aside so far as it related
to the dollar account, on the ground that she and not the Defendant was the beneficial owner. The wife conceded that the ownership
of the dollar account was the sole issue raised by her application. Four days before the date fixed for hearing of the wife's application
judgment was given for the Plaintiffs in the Court of Queens Bench in the action against the Defendant. In the course of his judgment
the judge rejected the Defendant's evidence and when the wife's application came on for hearing later before the same judge she decided,
without formally withdrawing it, not to proceed with the application because of the judge's attitude towards her husband's application
in the Plaintiffs' action and because he intended to appeal. She stated through counsel that she did not concede the issue of ownership
of the dollar account and expressly reserved that issue but she acknowledged that the consequence of not proceeding would be that
her application would be dismissed. Her application was then dismissed.
On the same day the Plaintiffs applied ex-parte for a garnishee order against the wife to attach the dollar account. They contended
that the dismissal of the wife's application raised an issue estoppel which precluded her from further contesting the issue of ownership
of the dollar account and that the dismissal accordingly established that the account belonged to the Defendant and was therefore
available for execution to satisfy the Plaintiffs' judgment against the Defendant. The trial judge upheld this submission whereupon
the wife appealed to the Court of Appeal. The Court of Appeal dismissed the appeal for three reasons, only the first of which is
relevant here.
The Court held that an order dismissing proceedings, even where there had been no argument or evidence directed to the merits of the
case, was capable of giving rise to an issue estoppel if the litigant had put forward a positive case as the basis for applying for
the relief sought in the proceedings but at trial had declined to continue with the proceedings and had submitted to the order dismissing
them. The Court held that in these circumstances the general rule of Res Judicata applied, namely that it was an abuse of process
to raise in subsequent proceedings an issue which could have been litigated in earlier proceedings.
Counsel for the Plaintiff contends that SCF Finance Co. Ltd. v. Masri and Another is distinguishable from the facts of the present case on a number of grounds:
(i) That Mrs. Masri was put on an election to continue the case or it would be dismissed whereas no such election was ever put to
Ram Deo.
(ii) Mrs. Masri had already failed in the previous related case; hence the subsequent dismissal on a related matter was a dismissal on merits.
(iii) The solicitors for the Defendant misled the Court in Action No. 138 of 1961 but the Court was not misled in Masri's case.
(iv) The Public Trustee did not raise this issue in a previously related and identical case and consequently must be estopped from
raising it now. There was no such estoppel in Masri's case.
I agree with the first of the Plaintiff's grounds for distinguishing SCF Finance Co. Ltd. v. Masri and Another from the present case. I am also inclined to accept ground two although I note the remark of Ralph Gibson L.J. in SCF Finance Co. Ltd. v. Masri and Another at page 208 when he referred to the earlier decision of the Court of Appeal in Khan v. Goleccha International Ltd. (1980) 2 ALL E.R. 259, (1980) 1 WLR 1482, C.A. and said:
"The decision in Khan's case makes it clear that an order dismissing proceedings is capable of giving rise to issue estoppel
even though the court making such order has not heard argument or evidence directed on the merits."
I observe that His Lordship used the word "capable" thereby appearing to acknowledge that an order dismissing proceedings
need not necessarily in all cases give rise to issue estoppel.
I do not agree with ground three that Mr. Marquardt-Gray misled the Court in the earlier proceedings, rather I prefer to say that
in my view there was insufficient argument in the proceedings before Knox-Mawer J. to enable His Lordship to reach a correct decision
in the matter. This seems to have been the view of the Court of Appeal in the 1983 proceedings when the Court described the earlier
1961 proceedings as "abortive".
It is clear from the Court record that no argument was addressed to the judge on the possible legal consequences of Ram Deo having
built a home on the land and as to the effect of the evidence of Surya Munidial Bidesi as to his father's intention to execute a
formal transfer of the block to Ram Deo as soon as the debt was liquidated.
Furthermore the learned judge without giving any detailed reasons appears to have ignored the offer by the Plaintiff to give a mortgage
on the property back to the Bidesi estate to secure Ram Deo's debt to the estate.
I believe I am correct therefore in concluding that these may well have been the reasons why the Court of Appeal described the proceedings
as "abortive". As a single judge of this Court I would be most reluctant to differ from the Court of Appeal on this question.
I consider there is much merit in the fourth ground of alleged distinction. I agree that it would have been open to the Public Trustee
before Kermode J. to have raised this issue but he did not do so. If he had it could have provided a short but compelling reason
for Kermode J. to have found for the Public Trustee. Obviously then the Public Trustee did not consider the argument open to him
although he appears to raise it in his defence to the present proceedings.
I have come to the conclusion after careful consideration of the cases and of the facts of the earlier proceedings as they are at
present known that the question of Res Judicata does not arise and thus bar the Plaintiff from further proceedings in this matter.
The Defendant next submits that there has been inordinate delay by the Plaintiff in pursuing his claim which has prejudiced the Defendant.
It is said that the events with which Civil Action No. 138 of 1961 were concerned occurred during the lifetime of Bidesi s/o Chuman
which would be before the date of his death on the 15th of November 1957 more than thirty-six years ago. It is therefore argued that
since 1961 more than 32 years ago there can now be no chance of a fair trial because of the natural
likelihood of the recollection of any persons the Defendant might wish to call being clouded by the passing of time. I shall now refer
to the leading cases on this topic, Allen v. Sir Alfred McAlpine & Sons Ltd. (1968) 2 Q.B. 229 and Birkettt v. James (1978) A.C. 297, Department of Transport v. Chris Smaller Limited (1989) 1 A.C. 1197 and the recent decisions of the Court of Appeal here in Potter v. Turtle Airways Limited and Another, Civil Appeal No. 49 of 1992, judgment in which was given on the 20th of August 1993.
In Allen v. Sir Alfred McAlpine & Sons Ltd. Salmon L.J. stated at page 268 that in order for an application to dismiss for want of prosecution to succeed the Defendant must
show:
(1) that there has been inordinate delay. What is or is not inordinate delay must depend on the facts of each particular case. These
vary infinitely from case to case, but inordinate delay should not be too difficult to recognise when it occurs.
(2) that this inordinate delay is inexcusable. As a rule, until a credible excuse is made out, the natural inference would be that
it is inexcusable.
(3) that the defendants are likely to be seriously prejudiced by the delay. .................... As a rule, the longer the delay, the greater the likelihood
of serious prejudice at the trial.
Earlier at page 255 Diplock L.J. said:
"The chances of the court's being able to find out what really happened are progressively reduced as time goes on. This puts
justice to the hazard. If the trial is allowed to proceed, this is more likely to operate to the prejudice of the plaintiff on whom
the onus of satisfying the court as to what happened generally lies. But there may come a time when the interval between the events
alleged to constitute the cause of action and the trial of the action is so prolonged that there is a substantial risk that a fair
trial of the issues will be no longer possible. When this stage has been reached, the public interest in the administration of justice
demands that the action should not be allowed to proceed."
In Potter v. Turtle Airways Limited Helsham P. and Kapi J.A. quoted with approval the remarks of Cross J. as he then was in the Chancery Division of the High Court in
Zimmer Orthopaedic Ltd. v. Zimmer Manufacturing Co. (1968) 2 ALL E.R. 309. At page 311 His Lordship said:
"The essence of the matter, as I understand it, is this. It is for the plaintiff and his legal advisers to get on with the action
and to see that it is brought to trial with reasonable despatch. The defendant is normally under no duty to stimulate him into action,
and the plaintiff cannot complain that he gave him no warning before applying to have the action dismissed for want of prosecution.
But the court will not take the drastic step of dismissing the action unless (a) the delay has been inordinate, (b) there was no
excuse for it, and (c) the defendant is likely to be seriously prejudiced by it if the action is allowed to go on."
The Plaintiff of course accepts these authorities but says that the present case can be distinguished from them. It is pointed out
that the bulk of the Plaintiff's evidence is in writing and here I note that in the earlier proceedings in 1961 there was no application
by the Public Trustee for leave to cross-examine the deponents Ram Deo and Surya Munidial Bidesi on their affidavits. It appears
to have been tacitly admitted by the Public Trustee that the statements made in those affidavits as to the gift by the deceased Bidesi
were true. I therefore am not persuaded that the Defendant here is likely to be prejudiced merely by the delay which has occurred.
In Potter v. Turtle Airways Limited (supra) Helsham P. and Kapi J.A. stated at page 3 of their judgment that the expression "inordinate" probably means "too
long in all the circumstances". They then said that "too long" means "so long that proper justice may not be
able to be done to the parties."
Bearing in mind these considerations and the likelihood that the original Court file in this case could not be found I am not prepared
to hold that the Plaintiff has been guilty of inordinate delay and that the Defendant has been prejudiced in his defence of this
action.
During argument Mr. Singh, counsel for the Defendant suggested that the proceedings were now barred by the Limitations Act Cap. 35.
I can reject this submission on two grounds:
First that it was never pleaded in the defence to this case, no application has been made to amend the defence and even if it were
at this stage I would refuse it on the ground that it would have been made too late.
Secondly in any event in my view such a defence is caught by Section 26 of that Act which says:
"Nothing in this Act shall affect any equitable jurisdiction to refuse relief on the ground of acquiescence or otherwise."
It is clear that Plaintiff is seeking equity here and claiming what Stuart J. and later the Court of Appeal described in Badal v. Bhim Sen, Supreme Court Action No. 251 of 1976 and Civil Appeal No. 49 of 1977 as "proprietary estoppel".
The facts of this case are in many ways similar to those in Badal v. Bhim Sen. For some years prior to his death the late Bidesi allowed Ram Deo and his family to occupy the land and build a substantial home
on it which they occupied. There was evidence that he encouraged the construction of the house.
Stuart J. quoted at page 162 of the report the remarks of Lord Diplock in Gissing v. Gissing [1970] UKHL 3; (1971) A.C. 886, 905:
"A resulting implied or constructive trust . . . is created by a transaction between the trustee and the cestui que trust in
connection with the acquisition by the trustee of a legal estate in land, whenever the trustee has so conducted himself that it would
be inequitable to allow him to deny to the cestui que trust a beneficial interest in the land acquired. And he will be held so to
have conducted himself if by his words or conduct he has induced the cestui que trust to act to his own detriment in the reasonable
belief that by so acting he was acquiring a beneficial interest in the land."
At page 163 Stuart J. concluded that the wife of the first-named Plaintiff and the mother of the two children the second-named Plaintiff
had so conducted herself that she had induced the Defendant to act on the reasonable belief that he was acquiring the beneficial
interest in the land.
In my view it is arguable in the instant case that Ram Deo and his successors were acting on the reasonable belief that they were
acquiring the beneficial interest in the land.
At page 164 His Lordship listed three criteria which must apply before the doctrine of proprietary estoppel can be asserted. These
are:
(1) expenditure by the claimant;
(2) a belief, actively or passively encouraged by the owner that the claimant either had or would have a sufficient interest in the
land to justify the expenditure;
(3) the owner must have known that the claimant was incurring the expenditure in this mistaken belief, but has nevertheless stood
by or participated in the expenditure without enlightening the defendant;
(4) there must be no bar to the equity.
Prima facie there is evidence here which would justify such eventual findings and I consider that it would be unfair to the Plaintiff
to strike this matter out for want of prosecution at this stage.
It must be remembered that the Plaintiff's predecessors must have been in possession of the land for sometime prior to Bidesi's death
in 1957. They have lived on the land and occupied the house with at least the tacit acquiescence of the children of Bidesi all of
whom surviving are now of age, and arguably also for some time the Defendant Public Trustee.
The Court of Appeal concluded that the occupation of the Plaintiff and his predecessors should be left to the Court to decide. I agree
and for this reason I dismiss the Defendant's Summons and order him to pay the Plaintiff's costs. I would hope that the parties will
now set this matter down for trial as soon as possible as I consider any further delay by either side would be inexcusable.
JOHN E. BYRNE
JUDGE
Cases Referred to in Judgment:
(1) Allen v. Sir Alfred McAlpine & Sons Ltd. (1968) 2 Q.B. 229.
(2) Badal v. Bhim Sen S.C.A. No. 251/1976.
(3) Crown Estate Commissioners v. Dorset County Council (1990) 1 All E.R. 19.
(4) Gissing v. Gissing [1970] UKHL 3; (1971) A.C. 886.
(5) Khan v. Goleccha International Ltd. (1980) 2 All E.R. 259.
(6) Potter v. Turtle airways Limited and Another Civil Appeal NO. 49/1992.
(7) Action No. 1018 of 1982 The Public Trustee of the Colony of Fiji v. Sarup & Ors.
(8) Court of Appeal Civil Appeal No. 34 of 1983 Mam Sarup & Ors v. the Public Trustee of Fiji.
(9) SCF Finance Co. Ltd. v. Masri and Another (No. 3) (1987) 1 All E.R. 194.
(10) Zimmer Orthopaedic Ltd. v. Zimmer Manufacturing Co. (1968) 2 All E.R. 309.
Additional Cases and Authorities cited in argument:
(1) Adams on Law of Real Property 5th Edition p.300.
(2) Arnold and Others v. National Westminster Bank (1988) 3 All E.R. 977.
(3) Arnold and Others v. National Westminster Bank (1991) 3 All E.R. 41.
(4) Babar Bee v. Habib Merican Noordin & Ors. [1909] UKLawRpAC 38; (1909) A.C. 615.
(5) Birkett v. James (1978) A.C. 297.
(6) Suresh Sushil Chandra v. Ramend Prasad Charan C/A No. 394/1984.
(7) Halsbury's Laws of England, 4th Edition, paras. 972, 973 and 982.
(8) Hines v. Birkbeck College and Another (No. 2) (1991) 4 All E.R. 451.
(9) Talbot v. Berkshire C.C. (1993) 4 All E.R. 9.
(10) Snell's Principles of Equity, 26th Edition pp. 39 & 40.
(11) Re: State of Norway Application (No. 2) (1988) 3 W.L.R. 603.
(12) Department of Transport v. Chris Smaller (Transport) Ltd. (1989) 1 A.C. 1197.
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