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Wati v Ali [2011] FJHC 806; HBC101.2011 (16 December 2011)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION AT LAUTOKA

HBC No. 101 of 2011

IN THE MATTER OF Sections 169, 170 and 171 of the Land Transfer Act (Cap 131).

BETWEEN:

PADMA WATI of Saweni, Lautoka, Domestic Duties.
Plaintiff

AND:

SAIJAD ALI of Buabua, Lautoka, Farmer.
Defendant

Before: Master Anare Tuilevuka
Counsel: Mr. Anu Patel of S.B Patel & Company for the Plaintiff.
: Mr. Samuel K. Ram of Samuel K. Ram for the Defendant.

Date of Ruling: 16 December 2011

RULING

BACKGROUND

[1]. The plaintiff, Padma Wati applies under section169 of the Land Transfer Act (Cap 131) against Saijad Ali (the defendant) to show cause why Ali should not give up immediate vacant possession of Native Lease No. 13246 which is described as Drokoiba, situated in the Tikina of Vuda in the Province of Ba and which comprises 36 acres and 3 roods. Wati is the last registered proprietor of this land. Wati’s immediate predecessor in title was one Mani Ram. On 16 June 2006, whilst he was still the registered proprietor, Mani Ram entered into an agreement for the sale and purchase of the land in question. Pursuant to the agreement, Ali paid Mani Ram 1/3 of the purchase price. Immediately upon making that payment, Ali entered into possession of the land. But all this happened without the consent of the i Taukei Land Trust Board.

[2]. For one reason or another, the agreement fell through. Mani Ram then tried to get Ali to give up vacant possession. He did file a section 169 application to the High Court in Lautoka (HBC 228 of 2008). But that application was dismissed by Mr. Justice Inoke on 22 October 2009. In his ruling, Inoke J declined jurisdiction because Ali had a pending claim for a declaration of tenancy on the same land before the Agricultural Tribunal.

[3]. On 30 June 2010, the Agricultural Tribunal dismissed Ali’s claim for tenancy. The Tribunal also dismissed Ali’s claim for compensation in the sum of $35,000. However, what the Tribunal did was to order that all monies paid by Ali for the purchase of the land be refunded to him in full in 21 days. Several months later, in 2011, the Tribunal also dismissed an application by Ali for leave to appeal out of time. Notably, in December 2010, some six months after the Agricultural Tribunal dismissed Ali’s application for tenancy under s. 18(2) of ALTA, the land was transferred to Padma Wati, the current plaintiff. It is this transfer that Ali questions in his Affidavit in Opposition. At the hearing of this application, Mr. Ram submitted that the transfer of the property to Padma Wati was a fraudulent conveyance. He argued that Mani Ram has not reimbursed Ali as ordered by the Agricultural Tribunal and appears to be avoiding the payment.

[4]. I understood Mr. Ram’s argument to be that Mani Ram’s purpose in transferring the land to Padma Wati was to keep the land out of any potential judgement-creditor-action by Ali such as a Charging Order under Order 50 of the High Court Rules.

[5]. In paragraphs 3 to 5 of his affidavit in opposition, Ali deposes that Padma Wati had hitherto, always had a power of attorney granted by Mani Ram to deal with the land in question. However, less than 6 months after the Agricultural Tribunal had ordered Mani Ram to reimburse Ali all monies paid, the land was transferred to Padma Wati. In paragraph 12 of his affidavit, Ali deposes as follows:

12. My right to possession of the land is derived from my agreement with Mr. Mani Ram. I have commenced action against Mani Ram and Ms. Padma Wati on the basis that the transfer to Padma Wati was done to defeat my rights under the agreement dated 16th June 2006 and the subsequent decision of the Tribunal made on 30th June 2010.

[6]. He submits that Wati’s title is therefore impeachable and seeks a declaration that the transfer was null and void.

ANALYSIS

[7]. Sections 169, 170, 171 and 172 of the Land Transfer Act (Cap 131) state as follows:

Ejectors

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.

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.

Order for possession

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.

Dismissal of summons

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 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.

[8]. Because it is not disputed that Wati is the last registered proprietor of the property, the onus shifts to Ali under section 172 of the Land Transfer Act to show cause as to why vacant possession should not be given. In discharging that burden, Ali must show on affidavit evidence some right to possession which would preclude the granting of an order for possession under section 169. This does not mean that he has to prove conclusively a right to remain in possession. Rather, it is enough that he shows some tangible evidence establishing a right or at least supporting an arguable case for such a right (see Morris Hedstrom Limited v. Liaquat Ali (Action No. 153/87 at p2).

[9]. Inoke J in Birges v iTLTB HBC 172 of 2004L which was delivered just yesterday, cited the following passage from Waimiha Sawmilling Co. Ltd. v Waione Timber Co. Ltd. [1923] NZGazLawRp 32; [1923] NZLR 1137.

".................................... An owner of land is not necessarily bound to abstain from alienating his property of the existence of some adverse claim which he does not know or believe to be well founded, and because he knows that the effect of such alienation under the Land Transfer Act will be to destroy that claim. Nor is a purchaser necessarily bound to abstain from acquiring the property for the same reason. Good faith requires that due consideration be given to the conflicting interests both of the owner and of the claimant in such a case, and not that exclusive consideration be given to the interests of one of them only. Knowledge, therefore, that an adverse claim exists, that it may possibly be founded, and that it will be destroyed by an alienation of the property, is not in itself sufficient to stamp the transaction as fraudulent within the of the meaning Land Transfer Act."

[10]. In my view, Mr. Ram’s submission fails for the following reasons. Even if Mani Ram and Wati had colluded to transfer the property in question to the latter to keep it out of reach of any potential enforcement proceedings by Ali, it does not render their collusion an act of fraud because Ali does not even have a proprietary interest on the land in question. In other words, he does not even have an “adverse claim” on the land in the sense contemplated by the above authorities.

[11]. Furthermore - without the iTLTB regulatory consent on the purported sale and purchase agreement between Ali and Mani Ram, an interest in equity cannot thereby arise to Ali. In Re CM Group Pty Ltd’s Caveat [1986] 1 Qd R 381, it was held that property did not pass in equity until the required municipal council approval was obtained. In Brown v Heffer (1967) 110 CLR 344, an interest in equity did not pass because the required consent of the Minister had not been obtained. In Chand v Prakash [2011] FJHC 640; HBC169.2010 (7 October 2011), the same general principle underlies the following comments of Mr. Justice Callanchini:

Promissory or equitable estoppel is described in Halsbury's Law 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."

However, there is a principle that the doctrine of estoppel cannot be invoked to render valid a transaction which the legislature has enacted is to be invalid. (Halsburys Laws of England supra at paragraph 1515). As Gates J (as then was) noted in Indar Prasad (supra) at page 171:

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

Furthermore, the comments of Byrne J (as then was) in Mani Lal and Others –v- Satya Nand (1994) 40 FLR 94 at page 100 are relevant to the position of the Defendant in the present proceedings. His Lordship stated:

"I am satisfied that the Defendant must have known that no consent of the Director of Lands had been obtained to his occupation. Before taking possession of the land he was under a duty to make all relevant enquiries as to the Plaintiff's title and since the land in question obviously was not freehold in my judgment one of the first steps he should have taken was to enquire whether the Director of Lands had given his consent to the transaction. If the Defendant proceeded to erect a building on the land either knowing that the Director of Lands had not given his consent or oblivious to the lack of such consent he cannot hold this against the Plaintiff".

CONCLUSION

[12]. Ali's claim against Mani Ram for the refund of monies he paid is not enough to justify his remaining in possession of the property in question. He has not shown any tangible evidence supporting an arguable claim to a right of possession. Whatever claim or entitlement he may have - is at best - a right in personam. Even if he had a right to possession (which he does not) - it would have died upon the transfer of the property to Padma Wati. Accordingly -I order that Ali delivers up vacant possession of the property described in paragraph 1 above within 21 days of the date of this ruling. I also order costs in the sum of $650-00 (six hundred and fifty dollars) in favour of the plaintiff to be paid in 21 days.

Anare Tuilevuka
Master

At Lautoka.
16 December 2011.