IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 43 of 2009

IN THE MATTER of the land comprised in Certificate of Title No. X/1/05.6

AND

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

BETWEEN:

KAIYAVA BAI formerly of 17 Maqbool Road, Nadera, Nasinu but of Tomuka Road, Nadera, Nasinu in the Republic of the Fiji Islands, Domestic Duties
PLAINTIFF

AND:

ASERI DIVUKA of Lot 2 Caqiri Road, Nasinu in the Republic of the Fiji Islands, Domestic Duties
DEFENDANT

BEFORE: MASTER DEEPTHI AMARATUNGA

COUNSELS: Ms. Ulamila Fa for the Plaintiff
 Mr. Vakaloloma for the Defendant

Date of Hearing: 3rd March, 2011
Date of Ruling: 5th September, 2011

RULING

A.	INTRODUCTION

1.	This is an application in terms of Section 169 of the Land Transfer Act. The Plaintiff is the step daughter of the Defendant. The Defendant has lived on the property after she got married to her late husband Pita Sivaro. After the death of her late husband, though she made an attempt to obtain letters of administration it was not completed and she did not obtain the letters of administration and subsequently though the same law firm that initially took steps to obtain the letters of administration for the Defendant has acted on behalf of the Plaintiff and the step daughter (Plaintiff) has obtained the letters of administration for her dead father's estate. The premises in issue is a state freehold land and the Plaintiff has obtained the 99 year lease for the property as the person who is holding the letters of administration of the deceased Pita Sivaro on 24th June, 2008 and earlier the same land was granted on lease to her late father. The Defendant has lived in the property from her marriage to late Pita Sivaro, and claims substantial improvements including the furnishing of the house and completion of the house on the property where she lives. The Plaintiff states that since the Defendant has re-married she has no right to stay in the matrimonial property, and seeks eviction from premises. 

B.	FACTS

2.	The property in issue is a state freehold land and it was granted to the late husband of the defendant, Pita Sivaro for a 99 year lease.

3.	Said Pita Sivaro died on 17th August, 1996 and though the Defendant as the legal wife made attempts to obtain the letters of administration, she did not complete the process and could not obtain the letters of administration.

4.	The Plaintiff has obtained the letters of administration, through the same law firm who initially acted on behalf of the Defendant, to obtain the letters of administration. It had made the application on behalf of the Plaintiff and obtained the letters of administration on 21st September, 2007.

5.	The Plaintiff has obtained the lease hold rights of the property as the administratrix of the property of late Pita Sivaro, as a tenant for 99 years commencing from 1st January, 2008 and it was registered on 24th June, 2008.

6.	It is clear that the Plaintiff has obtained the said lease after she obtained the letters of administration and even on the lease her name has been described 'as the Administratrix of the estate of Pita Sivaro as a tenant….' 

7.	The Plaintiff now seeks to evict her step mother, who lived with late Pita Sivaro in the said premises as their matrimonial home.
8.	The Plaintiff alleges that the Defendant has re-married, and should not be entitled to any right to stay in the matrimonial house.

9.	The Defendant states that she has done substantial contribution to build the said house and also to furnish the said house, completed, and state that all were done on the belief that she will be allowed to live on the property as her matrimonial house.

C.	THE LAW AND ANALYSIS

10.	Section 169 of the Land Transfer Act states as follows:

"169. The following persons may summon any person in possession of land to appear before a Judge in Chambers to show cause why the person summoned should not give up possession to the applicant;

(a)	 The last registered proprietor of the land;

(b)	 …….

(c)	 ………"

(d)	 The procedure under section 169 is governed by section 171 and 172 of the Land Transfer Act, Section 171 provides as follows:

"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".

(e)	 The relevant part of section 172 provides:

"172. If the person summoned appears he may show cause why he refuses to give possession of such land and, if he proves to the satisfaction of the judge a right to the possession of the land, the judge shall dismiss the summons with costs against the proprietor, mortgagee or lessor or he may make any order and impose any terms he may thinks 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."

11.	 Section 172 of the Land Transfer Act states that "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 and 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 persons summoned to which he may be otherwise entitled." The burden is shifted to the Defendant to satisfy the court that she has a right to possession of the land in dispute. In Morris Hedstrom Limited –v- Liaquat Ali CA No: 153/87, the Supreme Court of Fiji described the scope of the said provision.

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

"Under Section 172 the person summonsed may show cause why he refused to give possession of the land if he proves to the satisfaction of the Judge a right to possession or can establish an arguable defence the application will be dismissed with costs in his favour. The Defendants must show on affidavit evidence some right to possession which would preclude the granting of an order for possession under Section 169 procedure. That is not to say that final or incontrovertible proof of a right to remain in possession must be adduced. What is required is that some tangible evidence establishing a right or supporting an arguable case for such a right must be adduced." 

(emphasis is mine)

13.	So what the Defendant has to satisfy is some tangible evidence to establish a right to stay in the property or to support an arguable case.

14.	Defendant alleges proprietary estoppel, and state that she was promised by her late husband to look after her till her death. She also alleges substantial improvements to the property while her late husband was living since she wanted to live in the said property with her late husband till her death. The Defendant also alleges some substantial essential improvements even after the death of her late husband. She also alleges that she had undertaken all the maintenance of the property on the belief that it will be hers upon the death of the late husband. The Defendant was unable to produce any receipts to substantiate the improvements or repairs to the property. She also states that she did not keep any proof, of the said improvements as she thought the property as her matrimonial property. A person, who thinks that the property belongs to that person, would not keep such documentary proof and these are matters that has to be tested in a trial, through oral evidence that has to be tested in cross examination. The Plaintiff has also in the affidavit in opposition has requested the Defendant to prove them, clearly indicating that there is an arguable point. The plaintiff's name appears in the title as the administratrix of her late father, namely Pita, but she alleges that she has obtained the title absolutely. So, whether the Plaintiff has an absolute right to evict the legal widow of the deceased and what rights had she obtained prior and after her subsequent marriage are arguable issues that can be determined in a trial. 

15.	In opposition to this application the Defendant categorically states that she has an equitable interest in the said property as she has continuously contributed from the building to furnishing the house that is situated in the property in question. In Denny v Jessen [1977] 1 NZLR 635 at 639 Justice White summarized the proprietary estoppel as follows:

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

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

16.	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.

17.	There must be an expenditure, a mistaken belief, conscious silence on the part of the owner of the land and no bar to the equity …"Conscious silence" implies knowledge on the part of the defendant that the plaintiff was incurring the expenditure and in the mistaken belief that here was a contract to purchase and that here defendant "stood by" without enlightening the plaintiff. In short the plaintiff must establish fraud or unconscionable behavior. The rule based on the cases cited, is stated in Snell (op cit) 566 as follows:

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

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

18.	The above, was quoted in the case of HBC 40 of 2009 in the High Court Fiji at Labasa in the case of Wilfred Thomas Peter V Hira Lal and Farisiko by Justice Anjala Wati and stated: 

'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.

19.	In this matter the Defendant has lived in the said property from her marriage to said late Pita and even after the death from 1996 she has lived in the property without any objection till December, 2008 when the notice to quit was issued, prior to this application was filed.

20.	In the affidavit in opposition that was filed on the court on 22nd April, 2009 the defendant states as follows:

a.	 She is entitle to ownership and live on the property, because of the marital understanding and the promise of the late husband that the property would be hers.

b.	 No prior leave of the Director of land has been obtained by the Plaintiff to institute this action.

c.	 The Plaintiff was aware of the late husband's wish that it should be transferred to her upon the death of the late husband.

d.	 Said late Pita, was unable to complete the house due to financial difficulties and the Defendant, with the help of her relatives and her savings contributed more than $8000.00 for the completion of the house and another amount for the furnishing of the house.

e.	 Apart from the above contributions, the house was renovated by replacing corrugated irons, repair to the kitchen and other repairs which cost more than $6000.

21.	The Defendant in her affidavit in reply has stated:

'That paragraphs 7, 8, 9, 10 and 11 of the affidavit is denied and not admitted and I put the Plaintiff to strict proof.'

D.	EXPENDITURE AND MISTAKEN BELIEF

22.	The above paragraphs referred in the affidavit in reply deals with the alleged contributions made by the Defendant to the Property. The Defendant has not annexed any receipts or other documentary proof, but considering the circumstances of the case the allegation of the improvements to the property cannot be rejected merely because some documentary proof is not attached. A person who thinks the property as the matrimonial home would not keep such documentary proof for such a long time. There was no dispute as to the property during the lifetime of the late Pita, and even after his death in 1996 the Plaintiff, has not taken any step to evict the Defendant till December, 2009 and for more than 13 years the Defendant has lived in the property as her own without any claim from another, including the Plaintiff. So, the Plaintiff was clearly under the mistaken belief that she owns the said property upon the death of her husband and the Plaintiff has also contributed to the said belief as she has remained for more than 13 years to institute the proceedings to evict her stepmother. It is common ground that a residential house made out of corrugated iron would need some repairs and one cannot live in such a property without maintenance or repairs for 13 years after the demise of late Pita in 1996.

23.	So, the allegation of repairs and maintenance to the house where the Defendant lives can be accepted, upon the evidence available to me and the Defendant has alleged substantial improvements to the property while her late husband was living, as he was short of money in building and refurbishing it. Since the long time passed and the mistaken belief that it would be hers, and the promise of the husband to look after her till her death, one cannot expect the Defendant to keep all the records of such expenditure considering the circumstances of the case. So, these allegations of substantial contributions to the property needs further investigation in a hearing, where her oral evidence has to be tested with cross examination to find out the credibility and truth of the said allegations.

E.	CONSCIOUS SILENCE ON THE PART OF THE OWNER OF THE LAND

24.	According to the Defendant, late husband has encountered some difficulty in building some additions to the house where she lives, and had asked for some money from the Defendant and she had made substantial contribution from her savings and also from relatives who donated some money. Defendant alleges that even after the completion of the said construction, she had expended whatever her remained savings to furnish the house. These were all done prior to the demise of her late husband Pita and he has let the Defendant to make substantial contributions, according to her statement. The Plaintiff has not alleged any contributions to the building of the house, but states that she put the Plaintiff to strict proof, which means that the Plaintiff has to prove them in a court of law and the only way that it can be tested is through oral evidence of the Plaintiff and any other witness who had the knowledge of her contributions to the said property. Even after the demise of the late husband in 1996 she has continued to live on the said property, while engaging in the maintenance of the property with some further improvements for more than 13 years and the Plaintiff has not taken any step till 2008 either to obtain the letter of administration for the estate of late Pita, and or to dispute the ownership of the Defendant to the said property.

F.	NO BAR TO THE EQUITY

25.	It is clear that the Plaintiff has instituted this action after she obtained the letter of administration for late Pita, her father, 13 years after the demise of said Pita. There is no dispute as to the marriage with Defendant to the Plaintiff's father and they had lived in the said property for a considerable time as their matrimonial home. Even after the demise of said Pita, the Defendant has lived in the said property, while caring out maintenance. In the circumstances the equity would not bar a finding in favour of the Defendant on the point of proprietary estoppel.

G.	CONCLUSION

26.	The title of the Plaintiff to the premises includes a land as well as a residential house where the Defendant has lived for a considerable time period. The Defendant has lived in the said house as the matrimonial house after she got married to the father of the Plaintiff. The Defendant alleges substantial improvements to the building in the form of addition to the said house, including furnishing of the house. The Defendant has not obtained the letters of administration to the estate of said late husband though she is the first person who has a claim for the said application for letters of administration. The Plaintiff has obtained the letters of administration for her father's estate. The land on which the house where the Defendant lives, was granted to the late Pita, on a lease and upon the death said lease was not obtained in the name of the Defendant as she did not obtain the letter of administration for the estate of late Pita. The Plaintiff as the daughter of the deceased has obtained the letter of administration for the estate of late Pita and had obtained the lease in her name 'as the Administratrix of the estate of Pita Sivaro as a tenant…' and this is explicitly stated in her title that is annexed to this action. The Defendant has established a right to stay in the property on equitable grounds and presented some tangible evidence establishing a right or supporting an arguable case for such a right to remain in the possession of the premises. So, the application to evict the stepmother (Defendant) of the Plaintiff is dismissed. Considering the circumstances of the case I will not grant a cost to the Defendant.

The Court Orders as follows:

a.	The summons to evict the Defendant is dismissed and struck out;

b.	No cost is awarded for this application and parties to bear their own cost.

Dated at Suva this 5th day of September, 2011.

Mr D. Amaratunga
Acting Master of the High Court
Suva