IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION	
	
Civil Action No. HBC 47 of 2012	
		
	IN THE MATTER of an application under section 169 of the Land Transfer Act (Cap 131) for an Order for Immediate Vacant Possession.
	
BETWEEN	:	PARSHU RAM of 10 Covuli Street, Simla, Lautoka, Retired School Teacher.
PLAINTIFF

AND	:	DAYA NIDHI of 1 Kama Street, Simla, Lautoka.
DEFENDANT

Before	:	Master Anare Tuilevuka.	
			
Appearances	:	Mr. R. Chaudhary of Chaudhary& Associates for the Plaintiff.	
	:	Ms. Q. Vokanavanua for the Defendant	
			
Date of Hearing	:	05 July 2012	
Date of Ruling	:	Tuesday 14 August 2012	

RULING

INTRODUCTION

[1].	Parshu Ram (“Ram”), a retired schoolteacher of Lautoka, seeks an Order of the Court against Daya Nidhi, the defendant, to show cause why an Order for immediate vacant possession of the property comprised in Housing Authority Sub Lease No. 16986 known as Lot 1 on DP 4299 situated at 10 Kama Street, Simla, Lautoka should not be made against him (Daya Nidhi). The application is made pursuant to section 169 of the Land Transfer Act (Cap 132).

[2].	A copy of the Notice to Quit prepared by Chaudhary & Associates dated 11 February 2012 is annexed to Ram’s Affidavit. This Notice was served on Daya Nidhi on 11 February 2012 giving him a month’s notice to quit the property.

[3].	Section 169 of the Land Transfer Act (Cap 131) states 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)	a lessor against a lessee or tenant where a legal notice to quit has been given or the term of the lease has expired.”

[4].	Ram is the last registered proprietor of the property in question. A copy of Housing Authority Sub Lease No. 169869 is annexed to his affidavit in support of the application. Ram, having established his proprietorship over the property, and, also, by that, his locus to apply under section 169, the onus then shifts to Daya Nidhi under section 172 of the Land Transfer Act to show cause as to why vacant possession should not be given. Section 172 states as follows:

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.

[5].	In order to prove to the satisfaction of this court a right to possession of the land, all that is required of Daya Nidhi under section 172 is to demonstrate by 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).

ANALYSIS

[6].	After considering the material in all affidavits filed for and on behalf of both parties and the submissions of both counsel, I conclude that Daya Nidhi has an arguable case to remain in possession. The facts which I gather from the affidavits filed and the sworn viva voce evidence of Daya Nidhi in court - on which I base the above conclusion -are as follows:

(i)	the plaintiff, Ram, is the father of the defendant, Daya Nidhi.

(ii)	in 2010, Daya Nidhi came to occupy the first floor of the property in question. Whilst there, he started letting out the ground floor to tenants.

(iii)	Nidhi does not pay rent. Ram wants him to vacate the property. I gather that he wants to let out the property himself and collect rent from it. Ram has requested Nidhi on many occasions to vacate the property but to no avail. He has even lodged a complaint to the police as he alleges that every time he asks Nidhi to leave, he reacts by threatening Ram at Ram's home in nearby Covuli Street.

(iv)	In paragraphs 4 and 7 of his first affidavit, Nidhi deposes as follows:

4. ….I am using the flat and had rented out the flat which is my share as the Plaintiff had given the flat for good as I have been looking after the property since I was a small boy and the Plaintiff had promised me half share.

7. ….I had looked after the Plaintiff and had put all my effort and used substantial sum of monies getting the house erected and always maintained the property myself as the Plaintiff had promised me that my share is in the property.

(v) In his supplementary affidavit, he deposes as follows:

2. ….in the year 1967 I was in Primary School from that time I started helping the Plaintiff in working in this farm, clearing the farm and doing farm labour works too and I also used to work in his chicken farm keeping the farm clean, feeding the chickens.

3. ….I had stayed with the Plaintiff all the time.

4. ….in 1990 the Plaintiff sold the family property

5. ….I had contributed for all family groceries weekly and used my moneys from my earnings while working at Carpenters Motors. The Plaintiff never used his money to purchase any groceries and to pay the water and electricity bills, all were paid by me. I also worked in family cane farm at Moto, Ba where the Plaintiff used to harvest 50 tonnes of cane, I managed to work in the farm and harvested 400 tonnes of cane.

6. ….when the Plaintiff built a new house, I helped in the house building, cleaning and grass cutting at 1 Kama Street and 19 Malamala Street.

7. ….the Plaintiff will not always have enough money to look after the family and nearly more than half of my wages from my work were used on him to look after the big family of 4 brothers and 4 sisters.

8. ….sometimes in 1979, the Plaintiff built a house in 19 Malamala Street, Lautoka from the moneys derived from the family farm at Moto Ba due to my hard work on the family cane farm on which farm I used to work all the time due to which the Plaintiff harvested 400 tonnes of cane.

9. ….sometimes in 1980's, the Plaintiff built another house at 1 Kama Street, Lautoka where I again contributed towards the building of the house and worked as labour during the building of the house as the Plaintiff at that time was residing in Ba after hours and in the weekends I used to look after the property when it was being built and stayed at the property as a Security at night.

10. ….in 1983 the Plaintiff asked me to stay in the Malamala Street, Lautoka property which he said he will transfer to me later as my share.

11. ….in 1986, the Plaintiff despite promising to transfer the property to me, sold the Malamala Street property and kept the money for himself.

12. ….the Plaintiff had a property at 1 Kama Street, Lautoka and told me that my share will be given from this property.

13. ….I used to purchase all the groceries, cooked food for everyone at home as the Plaintiff will never give any monies to purchase the groceries.

14. ….in 1990 the Plaintiff without discussing with the family sold the family property given by my grandfather and moved to 1 Kama Street, Lautoka. At that time I had to leave Carpenters Motor and join Yaqara Pastoral Company.

15. ….sometimes in 1983, the Plaintiff resided in 1 Kama Street, Lautoka when his leg was broken after fighting with my brother and I am the one who looked after him while he was in hospital and at home for one (1) year.

16. ….the Plaintiff had his leg broken, he could not move around and I used to take him for shower, put on his clothes and cook for him.

17. ….I helped the Plaintiff built a house in 10 Cavoli Street, Lautoka and the Plaintiff moved there from 1 Kama Street and I stayed at Kama Street.

18. ….the Plaintiff's house girl was paid by me and all groceries for the Plaintiff was provided by me. At that time while he was still having difficulty in working and was sick.

19. ….while staying at Cavoli Street, Lautoka he felt lonely and he took my children to stay with him so that my children can do all the work free for him and he won't have to pay for a house girl.

20. ….in 2005 I went overseas and locked the house at 1 Kama Street and while in overseas I always used to send him monies.

21. ….I returned to Fiji in 2010 and stayed at Cavoli Street where the Plaintiff created problems and he always used to bring Police and Army against me when I had to obtain a DVRO against him.

22. ….the Plaintiff was creating problem with all the family, all of his life and at times counseling was arranged by the Welfare Officer but he never attended.

23. ….the Plaintiff spoilt my children in criminal activities by supporting them and telling me not to interfere with them and by staying with the Plaintiff one of my son is now charged for criminal case.

24. ….the Plaintiff has a habit of fighting with everyone and creating problems so that he won't have to give shares as he used to fight with his father, his elder brother and my mother because of which he also divorced my mother. His habit was to divide and rule.

25. ….the Plaintiff had an accident three (3) times and just lately managed to save him from Police charges for which I did all the running around.

26. ….just lately at 1 Kama Street, I spent $8000.00 (eight thousand dollars) to renovate the house and give a portion on rent. On every religious function I used to renovate the house and sometimes in 1997 I had to fully renovate the house as all the families agreed to get together at 1 Kama Street for religious functions than again I had to spend more than $10,000.00 to change the tiles, paintings, aluminum works, door, locks, furniture's and cutleries. I also did the catering for the function which the Plaintiff was supposed to do.

27. ….I can move out of his house if the Plaintiff pays me $350,000.00 towards my contribution to the family farm and the plaintiff's both houses.

28. ….if I had not contributed in the family houses and family farm for the Plaintiff I would have definitely saved up to approximately $350,000.00 for me and my family.

29. ….the Plaintiff has the habit of creating problems every time and he does not want to give me share from his property as I have always sweated for him and whatever I earned up till now was given to the Plaintiff to contribute towards the building of the family houses.

REASONS

[7].	Based on the above facts, my reasons for finding that Daya Nidhi has an arguable case to remain in possession are as follows:

(i)	Nidhi is not asserting a right of possession based on a right of inheritance by the mere fact that he is the biological son of Parshu Ram. 

(ii)	rather, Nidhi's claim to a right of possession is predicated upon some promise(s) allegedly made to him by his father of a share in some properties. These promises were purportedly made in acknowledgement of the time, money, labour and love that Nidhi rendered to his father through the years from a very young age. 

(iii)	while I accept that a parent is not legally obligated to bequest his residential property to his adult children, it is by no means far-fetched that a father would make promises to a son in the circumstances alleged.

(iv)	the circumstances alleged, in my view, make for an arguable case theory premised on the equitable doctrine of proprietary estoppel.

(v)	the above equity has been known to operate to create a positive proprietary interest where, for example, a promise of an interest in land is not adhered to, and the promisor seeks to rely on the absence of any intention to create legal relations and/or that the transaction does not satisfy the statute of frauds or that there is insufficient part performance. 

(vi)	the scope of the doctrine is clear from the following excerpt from Jims Enterprises Ltd v Mara [2010] FJHC 35; HBC139.2009 (5 February 2010) as per Madam Justice Wati:

The doctrine of proprietary estoppel is applicable where, according to Handbury and Mandsley Modern Equity (11th Ed) pp 736 – 737:

"One party knowingly encourages another to act, or acquiesces in the other's action, to his detriment and in infringement of the first party's rights. He will be unable to complain later about the infringement, and may indeed be required to make good the expectation which he encouraged the other party to rely on. Unlike other estoppels therefore, this doctrine may, in some circumstances, create a claim and an entitlement to positive proprietary rights; in others, it can operate negatively, or can produce a compromise situation appropriate to the particular circumstances".

Snell's Equity (13th Ed), at para 39 – 12 states that:

"Proprietary estoppel is one of the qualification to the general rule that a person who spends money or improving the property of another has no claim to reimbursement or to any proprietary interest in the property".

Proprietary estoppel, unlike promissory estoppel, is permanent in its effect. It is capable even of conferring a right of action. For it to apply there must exist essential elements or conditions. The Court, in Denny v. Jensen [1977] NZLR 635 identified four conditions namely, at p.638.

"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".

Megarry J in In re Vendervell's Trust (No. 2) [1974] CH 269 describes the essential elements this way, at p. 301,

"... the person to be estopped (I shall call him O, to represent the owner of the property in question), must know not merely that the person doing the acts (which I shall call A) was incurring the expenditure in the mistaken belief that A already owned or would obtain a sufficient interest in the property to justify the expenditure, but also that he, O, was entitled to object to the expenditure. Knowing this, O nevertheless stood by without enlightening A. The equity is based on unconscionable behaviour by O; it must be shown by strong and cogent evidence that he knew of A's mistake, and nevertheless dishonestly remained willfully passive in order to profit by the mistake".

Was there conscious silence on the part of the registered proprietor in allowing the defendants to continue with their occupation while at the same time improving the property? While the plaintiff could be said to be implicated, willful passivity may in fact apply to him through its predecessors in title (Hopgood v. Brown [1955] 1 WLR 213; Jones (A.E.) v. Jone (F.W.) [1977] 1 WLR 438). The evidence before me suggests otherwise. 

(vii) a summary determination of such a prima facie claim to a proprietary interest by way of affidavit evidence would not be appropriate. A trial would be required to hear also the viva voce evidence of other family members.

[8].	I am mindful that if I was to dismiss the application now, Nidhi may or may not take immediate action to assert and prove his alleged interest so as to put Ram in limbo. 

ORDERS 

(i)	These proceedings are hereby deemed as if begun by writ under Order 28 Rule 9 of the High Court Rules 1988 and under section 172 of the Land Transfer Act. All affidavits filed hitherto are to stand as pleadings. The plaintiff is at liberty to add to his affidavit. If he so elects, he must file and serve a supplementary affidavit within 14 days hereof i.e. by 28 August 2012. The defendant is to file and serve a defence 14 days thereafter i.e. by 11 September 2012. The plaintiff is to file a reply 7 days thereafter i.e. by 18 September 2012. The case is adjourned to 19 September 2012 for directions. 

(ii)	Nidhi has no right to collect rent from the premises until a court order confirms his interest/title. Ram may apply for interim orders relating to rent.

The above timetable is to be strictly followed. Costs as well as a late filing fees will be incurred by any party who defaults.

Master Tuilevuka

At Lautoka
14 August 2012