IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 50 of 2001S

Between:

RANJIT SINGH
(f/n Sardar Singh)
Plaintiff

and

ARUN SINGH
(f/n Ranjit Singh)
Defendant

N. Arjun for the Plaintiff
S. Chandra for the Defendant

JUDGMENT

These are summary proceedings for possession brought by a father against his son under the provisions of Section 169 of the Land Transfer Act (Cap 131).

The Plaintiff filed two affidavits, the first on 5 February 01 and the second on 28 February 01. The Defendant’s affidavit was filed on 27 February 01.

The Plaintiff’s case is that the Defendant has been occupying the top flat of a house belonging to him at 110 Milverton Road Suva as a licensee rent free for the last 11 years. He now wishes to rent out the flat to increase his income in his old age. He gave the Defendant one month’s notice to quit the flat in December 2000 but his son has failed to vacate.

The Defendants answer is not altogether easy to understand and appears to involve a number of difficulties. In essence his case seemed to be that he was asked by his father to move into the flat which was then incomplete, that he moved in with his family and completed the flat at considerable expense to himself and that he did these things because the Plaintiff gave him to understand that he would thereby acquire a right to remain there. In support of his claim he exhibited a number of quotations for building works or building materials.

Mr. Chandra told me that the Defendant was very much shocked by receiving the notice to quit. Mr. Chandra helpfully referred me to a number of authorities and submitted that the Defendant had advanced an arguable case to have acquired a proprietary estoppel against the Plaintiff and that a proper evaluation of the Defendant’s case could not take place summarily, in other words that Section 169 proceedings were not here appropriate (see e.g. Shiu Narayan v. Shell Fiji Ltd FCA 52/87 – FCA Reps 88/135).

In answer, Mr. Arjun submitted that the Defendant’s case seemed to amount to the contention that the Plaintiff had effectively given the flat to him but there was nothing in writing to support such a drastic conclusion. He suggested that the facts were quite clear. The father denied that the flat had been substantially unfinished when his son moved in and the quotations exhibited to the Defendant’s affidavit were no evidence at all that he had ever in fact spent any money on the flat as claimed. Mr. Arjun told me that the Defendant’s case was a palpably dishonest attempt to deprive his poor old father of his property.

One always approaches family disputes with particular circumspection. They often have a long history and involve ancient promises or misunderstandings. I cannot say that the Defendant’s affidavit evidence was particularly convincing at face value but I bear in mind that he almost certainly did not draft the affidavit himself. The evidence is untested by cross examination. But if the Defendant is to be believed then he may indeed have acquired some sort of equitable interest in the property. As against that it must of course be remembered that even on his own admission he has lived in this flat with his family rent free for the last 11 years.

Mr. Arjun submitted that if this sort of defence were to be given credence then the whole section 169 procedure would be undermined. I share his concern but have concluded that in the circumstances of this case the interests of justice require that a short trial with oral evidence be held if the parties cannot resolve their differences. Accordingly I decline to make the order for possession sought.

M.D. Scott
Judge

7 June 01.