IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 113 of 2012S

IN THE MATTER 
of the lease comprised in Native Lease No. 15905, the property of
Shiu Kuar

AND

IN THE MATTER 
of the Land Transfer Act, Section 169

BETWEEN:

SHIU KUAR
of Lot 44 Naiyala Subdivision, Nausori, Retired.
PLAINTIFF

AND:

RAGHWA NAND
of Lot 44 Naiyala Subdivision, Nausori, Grass-cutter.
DEFENDANT

BEFORE : Master Deepthi Amaratunga
COUNSEL : Mr. Vinit Singh for the Plaintiff 
Ms. Pritika for the Defendant 

Date of Hearing : 9th August, 2012
Date of Decision : 12th September, 2012

DECISION

A.	INTRODUCTION

1.	The Plaintiff who is the mother of the Defendant is seeking eviction of her son, in terms of the Section 169 of the Land Transfer Act. The Defendant admits the proprietorship of the Plaintiff, but state that he has done improvements to the property and claims proprietary estoppel. The Defendant has not established proprietary estoppel and a right to possession is not established.

B.	LAW AND ANALYSIS

2.	The Defendant who is a son of the Plaintiff is not disputing the ownership of the property and since that is established in terms of the provisions contained in the Land Transfer Act, the burden is shifted to the Defendant to establish a right to possession.

3.	In Torrens system the registration is everything. In Prasad v Mohammed [2005] FJHC 124; HBC0272J.1999L (3 June 2005) His Lordship Gates J (as he then was) held 'In Fiji under the Torrens system of land registration, the register is everything: Subramani & Ano v Dharam Sheela & 3 Others [1982] 28 Fiji LR 82. Except in the case of fraud the title to land is that as registered with the Registrar of Titles under the Land Transfer Act [see sections 39, 40, 41, and…..

4.	Section 172 of the Land Transfer Act 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 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)

6.	The Defendant is alleging that the said property was bought from a sale of a property owned by his father after his demise. The Defendant also state that his share of the said estate of his late father including his share of the said property was sold by the mother and it was not given to him. No particulars have been given on the said property and these are all mere conjectures without any supporting evidence. The affidavit in reply to the affidavit in opposition is exhaustive to all the allegations contained in the affidavit in opposition. The Plaintiff explains the situation when she lost her husband and has also stated that the only property which was apparently jointly owned was transmitted to her upon the death of her late husband. So, in reality there was no estate left for the Defendant in the said property as she obtained title through transmission of death.

7.	The main contention of the Defendant is that he has over the years accrued equitable interest in the property, but by simply living in ancestral home as a licensee, with the leave and permission of the parent would not obtain equitable interest in the property. The equitable interest in a property could be through Promissory estoppel or Proprietary estoppel.

8.	Promissory estoppel according to Snell's Equity (29th Edi-3rd impression 1994) at page 570 state as follows

'During the nineteenth century equity extended the doctrine of estoppel to cases where instead of a representation of an existing fact there was a representation of intention or promise. More recently, this extension became prominent in a sequence of cases following the obiter statement by Denning J in Central London Property Trust Ltd v High Tree House Ltd., though these cases "may need to be reviewed and reduced to a coherent body of doctrine by the courts."

The doctrine

(a)	The rule, Where by his words or conduct one party to a transaction freely makes to the other an unambiguous promise or assurance which is intended to affect the legal relations between them (whether contractual or otherwise) a, and before it is withdrawn, the other party acts upon it, altering this position to his detriment, the party making the promise or assurance will not be permitted to act inconsistently with it. It is essential that the representor knows that the other party will act on his statement. Yet the conduct of the party need not derive its origin only from the encouragement of representation of the first; the question is whether it was influenced by such encouragement or representation." (emphasis is added)

There is no evidence of such promise by the mother or any evidence to show that the Defendant has Proprietary estoppel. The Defendant has lived on the property since the mother allowed the son to live in the same property due to social and economic condition that he was in. The Defendant is a grass cutter who has to maintain a family of his own. With all the expenditure of his family it is unlikely that he contributed for the dwelling and the Plaintiff's reply to the affidavit in opposition can be relied upon in the analysis of the evidence.

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).

9.	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. Inwards v Baker [1965] 2 QB 29; [1965] 1 All ER 446. A son had built on land owned by his father who died leaving his estate to others, but there the facts are entirely different, as the father insisted on the son to built the house on the spare land of the premises where the father was living. There was evidence to the effect that son originally did not want to built in the said land, but to build in another location, but father has encouraged the son to build the house in his land, where he was living separately. The facts before me are completely different and the said ratio in Inwards v Baker (supra) could not be applied. 

10.	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 cogent 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".

11.	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 Frasiko 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

12.	Snell's Equity (29th Edi 3rd impression 1994) on Proprietary Estoppel states as follows (p 573)

'Proprietary estoppel 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. Proprietary estoppel is older than promissory estoppel. It is permanent in its effect, and it is also capable of operation positively so as to confer a right of action. The term "estoppel", though often used, is thus not altogether appropriate. Yet the equity is based on estoppel in that one is encouraged to act to his detriment by the representation or encouragement of another so that it would be unconscionable for another to insist on his strict legal rights.' acted on such a promise.

13.	The evidence submitted to me through affidavits does not indicate any substantial expenditure on the property and there is no mistaken belief on the part of the Defendant. Since there is no substantial expenditure and mistaken belief, I need not consider the conscious silence on the part of the owner of the land. The owner is the mother and the Defendant, son, is a grass cutter, and due to the economic and social condition the Plaintiff has let the Defendant to live with her, but that cannot now be utilized against her to the extent of creating equitable right. This is clearly falling short of conscience silence on the part of the owner as required to establish a equitable right.

C.	CONCLUSION

14.	The Plaintiff, who is the natural mother of the Defendant, has allowed the Defendant and his family to live with her for a considerable time. This can be understood in economic and social background that they are living and it is not an uncommon thing. The Defendant is a grass cutter and also supports his family. The Plaintiff being the mother of the Defendant has been kind and very patient and tolerated the Defendant and the family living in the same premises. As usual, now it has become unbearable for her to live with the Defendant, and seeks eviction of her own son. This may be a very difficult decision for any mother, including the Plaintiff, but she may have her reasons and she has taken this decision to institute legal proceedings for eviction of the Defendant. The Defendant cannot claim equitable interest under the circumstances, even if he had incurred some expense it is only one requirement and in the absence of other requirements he cannot establish a right recognized under the law. I grant the order for eviction, but considering the hardship and economic condition of the Defendant and his family who had lived in harmony for a long time, I allow the Defendant, further three months form today to vacate the premises. The cost of this application is assessed summarily at $1,000.

D.	FINAL ORDERS

a.	The Plaintiff is granted the possession of the premises described in the originating summons.

b.	The execution of the said order is stayed for three months from today (till 11th December, 2012)

c.	The Defendant is ordered to pay a cost of $1,000 as the cost of this application assessed summarily.

Dated at Suva this 12th day of September, 2012.

………………………………………….
Master Deepthi Amaratunga
High Court, Suva