IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. 184 of 2012

IN THE MATTER of an application under Section 169 of Part XXIV of the Land Transfer Act, Cap. 131 for an Order for Immediate Vacant Possession

BETWEEN:

VANA AERHART RAIHMAN as administratix of the Estate of the late Clarice Tuxepham Hussein of 131 Princess Road, Tamavua, Suva in the Republic of Fiji, Domestic Duties.
PLAINTIFF

AND:

MATHEW CHAND of Biliwai, Wailoku.
DEFENDANT

BEFORE : Master Deepthi Amaratunga
COUNSELS : Mr. Keteca I for the Plaintiff
Ms. Ana Rokomoti for the Defendant

Date of Hearing : 8th October, 2012
Date of Judgment : 30th October, 2012

JUDGMENT

1.	The Plaintiff has established her right to institute this action for eviction, as the administratix of late Clarice who owned the entire property at the time of her demise, through the certificate of title. There is no dispute between parties as to the locus standi of the Plaintiff, and once this is established the burden of proof shifted to the Defendant to prove his right to possession in terms of the Section 172 of the Land Transfer Act.

2.	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;"

3.	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)

4.	The burden of proof is shifted to the Defendant to prove a right recognized under the law for possession of the premises. Though the burden of proof is not very high a mere allegation is not sufficient to defeat the possessory right that invariably derived to the rightful owner of the property. In the Torrens system the registration of the ownership is conclusive subject to the exception of fraud.

5.	In Prasad v Mohammed [2005] FJHC 124; HBC0272J.1999L (3 June 2005) Justice Gates (as he was then) dealt the issue of fraud and the indefeasibility of the title regarding an application for eviction in terms of Section 169 of the Land Transfer Act and I cannot do better than quoting the relevant paragraphs in full where his lordship succinctly dealt the land law under Torrens system and its applicability in an application for eviction and the exception to the indefeasibility which is fraud, and held:

"Fraud 

[13] In Fiji under the Torrens system of land registration, the register is everything: Subaramani & 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 42]: Fels v Knowles (1906) 26 NZLR 604; Assets Co Ltd v Mere Roihi [1905] AC 176, PC. In Frazer v Walker [1967] AC 569 at p.580 Lord Wilberforce delivering the judgment of the Board said:

"It is to be noticed that each of these sections excepts the case of fraud, section 62 employing the words "except in case of fraud." And section 63 using the words "as against the person registered as proprietor of that land through fraud." The uncertain ambit of these expressions has been limited by judicial decision to actual fraud by the registered proprietor or his agent: Assets Co Ltd v Mere Roihi.

It is these sections which, together with those next referred to, confer upon the registered proprietor what has come to be called "indefeasibility of title. "The expression, not used in the Act itself, is a convenient description of the immunity from attack by adverse claim to the land or interest in respect of which he is registered, which a registered proprietor enjoys. This conception is central in the system of registration."

[14] Actual fraud or moral turpitude must therefore be shown on the part of the plaintiff as registered proprietor or of his agents Wicks v. Bennett [1921]30 CLR 80; Butler v Fairclough [1917] HCA 9; [1917] 23 CLR 78 at p.97.

[15] Fraud for the purposes of the Transfer Act has been defined by the Privy Council in Assets Company Ltd v Mere Roihi [1905] AC 176 at p.210 where it was said:

"...by fraud in these Acts is meant actual fraud, i.e. dishonesty of some sort, not what is called constructive or equitable fraud – an unfortunate expression and one very apt to mislead, but often used, for want of a better term, to denote transactions having consequences in equity similar to those which flow from fraud. Further, it appears to their Lordships that the fraud which must be proved in order to invalidate the title of a registered purchaser for value, whether he buys from a prior registered owner or from a person claiming under a title certified under the Native Land Acts, must be brought home to the person whose registered title is impeached or to his agents. Fraud by persons from whom he claims does not affect him unless knowledge of it is brought home to him or his agents. The mere fact that he might have found out fraud if he had been more vigilant, and had made further inquiries which he omitted to make, does not of itself prove fraud on his part. But if it be shown that his suspicions were aroused, and that he abstained from making inquiries for fear of learning the truth, the case is very different, and fraud may be properly ascribed to him. A person who presents for registration a document which is forged or has been fraudulently or improperly obtained is not guilty of fraud if he honestly believes it to be a genuine document which can be properly acted upon."

Fraud: Sufficiency of evidence

[16] In Sigatoka Builders Ltd v Pushpa Ram &Ano. (unreported) Lautoka High Court Civil Action No. HBC182.01L, 22 April 2002 I had occasion to say:

"Though evidence of fraud and collusion is often difficult to obtain, the evidence here falls a good way short of a standard requiring the court's further investigation. In Darshan Singh v Puran Singh [1987] 33 Fiji LR 63 at p.67 it was said:

"There must, in our view, be some evidence in support of the allegation indicating the need for fuller investigation which would make section 169 procedure unsatisfactory. In the present case the appellant merely asserted that he had paid the money for the purchase of the property. This was denied by both Prasin Kuar and the respondent. There was nothing whatsoever before the learned judge to suggest the existence of any evidence, documentary or oral, that might possibly assist the appellant in treating the case as falling within the scope of section 169 of the Land Transfer Act and making an order for possession in favour of the respondent."

In that case it was also held that a bare allegation of fraud did not amount by itself to a complicated question of fact, making the summary procedure of section 169 inappropriate see too Ram Devi v Satya Nand Sharma & Anor. [1985] 31 Fiji LR 130 at p.135A.A threshold of evidence must be reached by the Defendant before the Plaintiff can be denied his summary remedy. In Wallingford v Mutual Society [1880]5 AC 685 at p.697 Lord Selbourne LC said:

"With regard to fraud, if there be any principle which is perfectly well settled, it is that general allegations, however strong may be the words in which they are stated, are insufficient even to amount to an averment of fraud of which any Court ought to take notice. And here I find nothing but perfectly general and vague allegations of fraud. No single material fact is condescended upon, in a manner which would enable any Court to understand what it was that was alleged to be fraudulent."

6.	The Defendant has failed to establish fraud in this transaction of ownership to the late Clarice. The evidence of the elder brother of the Defendant Hari John Chand which was produced on behalf of the Defendant excludes any fraud or foul play. He explains the circumstances that led to the inclusion of his name as a joint tenant and why he consented to transfer his rights subsequently to late Clarice. It should be noted that Defendant's name did not appear in the certificate of title at all and he cannot rely on his brother's interest when he had voluntarily departed with the same in 2011 and no effort was made by the Defendant to safeguard any interest or right on the property by lodgement of a caveat.

7.	In the case of SHAH – v- FIFTA (2004) FJHC 299, HBC 0392J. 2003S (23RD June 2004) the Court took into consideration Section 38, 39 and 40 of the Land Transfer Act Cap 131.Under Section 38 of the Lands Transfer Act Cap 131 it states that; 

"No instrument of title registered under the provisions of this Act shall be impeached or defeasible by reason of or on account of any informality or in any application or document or in any proceedings previous to the registration of the instrument of title".

8.	Furthermore as per Section 39 (1) of the Land Transfer Act Cap 131, Pathik J in this case; SHAH –v- FIFITA (supra) was of the view that a registered instrument is conclusive evidence of Title. Pathik J further emphasised on section 40 of the Land Transfer Act Cap 131 as follows:

"Except in the case of fraud, no person contracting or dealing with or taking or proposing to take a transfer from the proprietor of any estate or interest in land subject to the provisions of this Act shall be required or in any manner concerned to inquire or ascertain the circumstances in or the consideration for which such proprietor or in any previous proprietor of such estate or interest is or was registered, or to see to the application of the purchase money or any part thereof, or shall be affected by notice, direct or constructive, of any trust or unregistered interest, any rule of law or equity to the contrary notwithstanding, and the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud".

9.	In the case; Chute-v- Wati (2009) FJHC 247; HBC 049.2008 which was also an application under Section 169 of the Land Transfer Act, there were 2 owners having one undivided half share each. One of the owners namely Deo in his capacity as administrator of the estate and in his personal capacity executed the Transfer of the property to one Alick Chute and Others. Later, one of the beneficiaries of the estate, Wati filed action claiming that the transfer by Deo to Chute and Others was in fact tainted by fraud. Philips J. conceded that fraud, if established, provided an exception to the principle of indefeasibility of Title. However, Philips J said that the law is that what must be established is actual fraud and not just constructive or equitable fraud. Furthermore held that fraud to be proved by Wati must be that of the registered proprietor (i.e. Chute and others) and not just Deo's fraud. She observed that the allegations of fraud made by Wati were rather general allegations and only against Deo. Philips J then cited the authority of Wallington-v-The Directors of the Mutual Society (1879) 5 App Case at 697 that general allegations of fraud are insufficient even to amount to an averment of fraud of which any Court ought to take notice. 

10.	Santa Wati –v- Ambika Prasad, High Court Civil Action No: 44 of 1992 in which fraud in a registered land transaction was described by Justice Pathik as follows: 

"Mere Knowledge on the part of the Plaintiffs of Defendants occupation is insufficient to constitute fraud in them (but fraud is not alleged against them but against Charan") 

11.	In Eng Mee Young and Others (1980) Ac 331 in which Lord Diplock stated that: 

"The Torrens system of land registration and conveyancing as applied in Malaya by the National Land Code, has as one of its principle objects to give certainty to land and registrable interests in land. Since the instant case is concerned with Title to the land itself their Lordships will confine their remarks to this, though similar principles apply to other registrable interests. By S.340 the title of any person to land of which he is registered as proprietor is indefeasible except in cases of fraud, forgery or illegality, and even in such cases a bond fide purchase for value can safely deal with the registered proprietor and will acquire from him on indefensible registered title". 

12.	The Defendant's evidence as well as the affidavit of the brother of the Defendant do not establish a fraud as accepted by the law for the consideration in an application under Section 169 of the Land Transfer Act. The next consideration is whether the Defendant has established a right to possession in terms of estoppel recognized in equity.(i.e. Promissory estoppel and proprietary estoppel) 

A.	PROMISSORY ESTOPPEL

13.	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)

14.	There is no evidence of any promise being made to the Defendant. Even the affidavit filed by the brother of the Defendant in support of the Defendant does not reveal any such promise which altered the position of late Clarence in favour of the Defendant. The Defendant's brother's affidavit was filed by the Defendant in support of his possession, but neither the said affidavit nor the affidavit of the Defendant reveal any promise to the Defendant by the owners of the property and there is no action taken by the Defendant on such a promise. No promissory estoppel or an arguable case for such a right is established on the materials before me.

B.	PROPRIETARY ESTOPPEL

15.	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. 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's Equity (29th Edi-3rd impression 1994) 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".

17.	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 analyze 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

18.	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.'

19.	The Defendant was unable to establish any of the four requirements to establish proprietary estoppel and not even an arguable case for such a right is established. On the proper analysis of the evidence before me I conclude that the Defendant has failed to establish proprietary estoppel.

C.	CONCLUSION

20.	The Defendant has lived on the property for a long time, but under the Torrens system a possession for a long time period would not by itself derive a right. The Plaintiff's predecessor was a joint tenant of the property with the brother of the Defendant. The Defendant, his brother and even his parents all lived in the said property. The brother of the Defendant has left the property and he had transferred his right as a joint tenant to the property to late Clarice, who was the only remaining joint tenant at that time, so she became the sole proprietor of the premises in issue. So possession of Defendant derived from his brother's leave and licence and this leave extinguished with the brother transferring his rights to late 	Clarice. The Defendant had not placed a caveat on the title. If he had an interest he should have filed a caveat to safeguard his interest. He has failed to establish any right recognized in law for the possession. The Defendant has neither established a fraud nor any right to remain on possession recognized in equity. No evidence of any promise of ownership by late Clarice or by his brother who were joint tenants of the property till 1st March, 2011. The transfer of the right of the brother as a joint tenant is fully described in the affidavit of the said brother, filed in support of the Defendant. It clears any fraud or foul play and describes circumstances that led to the inclusion of his name in the title as joint tenant and the subsequent relinquishing of the said right. The Defendant's contention is that he was not consulted in the said transfer of his brother's interest in premises, but there was no need and if the Defendant had any right he would have safeguarded the same by lodging a caveat. In the circumstances the Plaintiff's application for possession is granted, but considering the circumstances of the case I will grant time till 31st December, 2012 for the Defendant to vacate the premises. I will not order costs considering the circumstances of the case.

D.	FINAL ORDERS

a.	The Plaintiff is granted possession of the premises described in the originating summons.
b.	The execution of the said order is stayed till 31st December, 2012.
c.	No costs.

Dated at Suva this 30th day of October, 2012.

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