IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No: HBC 423 of 2007

BETWEEN:

SHALENDRA PRASAD
[Plaintiff]

AND:

KUAR PRASAD
[Defendant]

Counsel: Mr. T. Sharma for the Plaintiff 
Mr. S. Kumar for the Defendant 

Date of Judgment: 5 December, 2012

JUDGMENT

[1].	This action is instituted by the plaintiff against the defendant by virtue of being an equitable owner of the defendant's property situated at Lot 10 Dilkusha Road, Nausori. The plaintiff claims that he made financial and physical contributions to the improvements and constructions of the properly thus he has equitable rights over the property.

[2].	The plaintiff alleged that the defendant induced him to contribute towards the building of the three storey flat in particular the middle flat and promised the plaintiff that the middle flat would belong to the plaintiff. The plaintiff pleads that he is entitled to specific performance of the agreement i.e. that the defendant would transfer the middle flat to the plaintiff.

[3].	The plaintiff further pleads estopple i.e. the defendant through his actions, deeds, promises and assurance got the plaintiff to spend substantial sum of money in the constructions of the house in dispute.
[4].	In the alternative, the plaintiff pleads that the defendant holds the property in favour of the plaintiff under the resulting trust. 

[5].	As can be seen from the statement of the claim the main remedies sought by the plaintiff are as follows:

1).	The defendant be ordered to pay the plaintiff a sum of money equivalent to 1/3 of the market value of the subject property.

2)	The defendant be ordered to transfer the plaintiff a 1/3 share of the middle flat of the property in dispute.

3)	An order that the defendant holds the property in dispute under the principle of constructive trust or resulting trust in favour of the plaintiff.

[6].	The defendant in his statement of defence denies the plaintiff's allegations. The defendant admits that the plaintiff had done some works on the middle flat but stated that the costs incurred by the plaintiff would not exceed $2000.00.

[7].	The defendant further states that he asked the plaintiff to move from the top flat to the bottom flat in order to renovate the top flat but the plaintiff refused to move and therefore the defendant sent the plaintiff an eviction notice. 

[8].	The defendant counterclaimed $25,800.00 being rent from January 2002 to February 20009 [7 years and 2 months at $300.00 per month]. The defendant further claims a rent of $300.00 per month from 2009 onwards.

[9].	As this matter has been pending since 2007, both parties agreed to tender plaintiff's and defendant's evidence-in-chief by way of affidavits in order to minimise the delay. 

[10].	In his evidence-in-chief, the plaintiff stated that he spent money to construct the house in question and the defendant who is the plaintiff's father promised the plaintiff that he would be allowed to reside in the house.

[11].	According to the plaintiff, the defendant had obtained a loan of $27,000.00 to construct the upper floor and when the plaintiff's elder brother got married and moved out of the property, the plaintiff came to occupy the property and helped the defendant to repay the loan. The plaintiff stated that he paid $125.00 on weekly basis and he had been paying that amount since 1993 – 2002 December. 

[12].	The plaintiff got married in 2002 and thereafter stopped paying the defendant. The plaintiff further stated that he was not issued with receipts by the defendant, the plaintiff did not ask any receipt since the defendant promised him to give the middle flat, the middle flat was constructed in January 2002, the plaintiff funded for construction of the flat and he spend $18, 828.00 for the construction of the middle flat. 

[13].	According to the plaintiff, he had paid $65,000.00 to the defendant from 1993 – 2002. In 2006, the defendant's sister moved to the middle flat and the plaintiff moved to the top flat.

[14].	The plaintiff further stated that before he moved to the top flat, it was on rent and when the tenants vacated he was asked by the defendant to move to the top flat. The middle flat was then given on rent. The plaintiff spent $356.10 to repair the top flat. Furthermore, the plaintiff stated that in 2007 the defendant asked him to vacate the premises.

[15].	According to the plaintiff's evidence, he had worked for two reputed companies namely Padaraths Aluminium and Country Wide Aluminium. But when asked by the defence counsel in cross examination, the plaintiff failed to produce any salary slips issued to him by his former employers.

[16].	In his affidavit, the plaintiff has annexed a set of receipts marked as 'A' to show the expenses accrued in constructing the house. In that set of documents, the plaintiff had included a document to show that he employed several persons to build the middle flat. The plaintiff stated that it was prepared by him, but later admitted that his former solicitor's handwritings are also in that letter. The answers given by the plaintiff in cross examination creates a reasonable doubt as to the geniuses of that document.

[17].	In order to establish that the plaintiff earned and contributed $125.00 for the construction of the properly since 1993, he stated that he used to sell chicken but the plaintiff failed to produce sufficient evidence to prove his income during that period.

[18].	The plaintiff also called one Edwin Narayan in support of his claim. Edwin Narayan's evidence was that he was working for the plaintiff when the house was under construction and was assisting one Mohammed Hassan who was doing the plastering of the building.

[19].	In cross examination it was revealed that the witness was only 15 years old student at that time. Further, the witness was unable to state the exact time period during which he worked for the plaintiff. He stated that he used to work on an off and was paid between $12 -$15 by the plaintiff. Considering his age during the material time, it is difficult to accept that this witness would have done labour work in constructing the house.

[20].	The defendant's evidence in chief was also tendered by way of an affidavit. In addition to that, the defendant himself testified.

[21].	 The defendant's evidence was that the plaintiff left school in 1993 after he failed Form 6 external exams; the plaintiff never had a permanent employment until 1997 and between 1995 and 1997 the plaintiff engaged in some casual work but never had a permanent income. In 1997, the plaintiff started work with Labasa Aluminium as a labourer but left work after 8 months. 

[22].	The defendant further stated that in 1998 the plaintiff could not find any employment but in 1999 he started to work for Anit and Sunit Aluminium Company, the plaintiff never spent money towards construction of his house, but spent his earnings on alcohol and to socialise with friends.

[23].	Furthermore, the defendant stated that after the plaintiff got married in 2002 he moved into the 2nd floor of the house, but the defendant never promised that the plaintiff would be given the 2nd floor as his share.

[24].	According to the defendant's evidence, the trouble started when the plaintiff was asked to move to the ground floor. The defendant further stated that since the property had suffered a lot of damage, the value of the property would be around $80,000.00 - $90,000.00.

[25].	The defendant called three witnesses namely, Atma Ram, Shiu Lal and Dharmendra Prasad. According to Atma Ram, the construction of the property was commenced in 1982. He further stated that when he started work, the plaintiff was a school boy. In cross examination, he stated that since the defendant had five children he could not precisely state whether the plaintiff was in a primary school or high school at that time.

[26].	The next witness was Shiu Lal. He stated that he plastered the middle flat and also installed the door frames and windows. In cross examination, he stated that he started work in the building somewhere in 2001 – 2003.
 
[27].	The final witness for the defence was Dharmendra Prasad, the brother of the plaintiff. His evidence was that when the construction started in 1982 the plaintiff was 7 years old and was not in a position to assist his father either financially or otherwise.

[28].	It could be observed that the document marked as "A" by the plaintiff also contained the names of Shiu Lal as a worker employed by the plaintiff, but Shiu Lal when giving evidence strongly denied the fact that he was paid by the plaintiff. The above evidence shows that the documents tendered by the plaintiff pertaining to the payments made to various people were not genuine documents but prepared by the plaintiff in support of his evidence.

[29].	Further it could be observed that almost all the receipts tendered by the plaintiff in respect of purchasing of building material were issued after 1999, whereas the plaintiff in his evidence-in-chief stated that he started the construction of the middle flat in 1995, and completed in 2002. It must be noted that the plaintiff could not produce any receipt issued prior to 1995. Not only that, most of the receipts tendered by the plaintiff pertained to buy aluminium and joinery material. Since the plaintiff was engaged in Aluminium and joinery work it could be safely inferred that the items purchased on those receipts were meant for his business purposes and not for the constructions of the house.

[30].	The only issue for determination before the court is whether the plaintiff has shown cause as to why an order for vacant possession should not be made against him. 

[31].	The plaintiff's main contention is that he was allowed by the defendant to construct and complete the middle flat and also encouraged him to spend on it on the expectation that it would be transferred in his name. In other words the plaintiff relies on the doctrine of proprietary estoppel and seeks remedy on equity in defence of the defendant's counter claim. 

[32].	In Willmott v. Barber (1880) 15 Ch D 96, Fry J considered that five elements had to be established before proprietary estoppels could operate:

•	The claimant must have made a mistake as to his legal rights;
•	The claimant must have done some act of reliance;
•	The defendant, the possessor of a legal right, must know of the existence of his own right which is inconsistent with the right claimed by the claimant;
•	The defendant must know of the claimant's mistaken belief; and 
•	The defendant must have encouraged the claimant in his act of reliance.

[33].	In a claim of this nature, what is really necessary is that the occupant should, at the request or with the encouragement of the landlord, have spent the money in the expectation of being allowed to stay there. 

[34].	The documents tendered by the defendant very clearly show that he had obtained a loan from a bank to build the house. Although the plaintiff stated that he assisted the defendant to repay the loan, the plaintiff failed to substantiate it with any document to the satisfaction of the court. Since the plaintiff failed to establish that he spent in the construction of the middle flat, I do not see any basis for him to claim rights on equity.

[35].	Had the plaintiff been induced by the defendant to construct the middle flat and had expended money for that purpose in the expectation of being allowed to remain there, certainly equity could not have allowed the expectation so created to be defeated.

[36].	However, in the absence of any cogent evidence to show that the defendant had induced the plaintiff to build the middle flat and also the expenses met by the plaintiff, it is my considered view that the plaintiff is not entitled to claim any right on equity. Thus, he cannot have recourse to estoppel against the defendant. 

[37].	The evidence is very clear, that the defendant being the father of the plaintiff has allowed the plaintiff and his family to stay in the middle flat without even asking for rent. The plaintiff's own evidence established that he had earlier occupied the top flat and later moved into the middle flat. Further, it was proved that the plaintiff was not paying any rent; nor, was he asked to pay any rent by the defendant.

[38].	More importantly, there is no evidence that the defendant had induced the plaintiff to spend the money in the expectation of being allowed to stay there. In this case, it is quite plain that the defendant allowed the plaintiff to stay in the middle flat because of the father and son relationship. The plaintiff would have expected that he would be given a share of the property by his father, but since there is no evidence of any express or at least an implied inducement to the plaintiff by the defendant to spend the money towards the construction of the house, I am not persuaded to hold that the plaintiff is entitled to claim any right on equity. 

[39].	Undisputedly, the defendant is the owner of the property. Since the plaintiff has failed to establish any equitable right over the property in dispute, he has no right to remain in the property without the consent of the defendant. 

[40].	The defendant in his counterclaim seeks a sum of $23100.00 from the plaintiff being rent from January 2002-May 2008. The defendant alleged that the plaintiff has been living on the property without paying any rent whatsoever. As I observed earlier there was no any express or implied agreement between the plaintiff and the defendant as to the paying of rent. The evidence of the plaintiff as well as the defendant undoubtedly proved that the plaintiff was allowed to stay on the property by the defendant solely due to the father-son relationship.

[41].	 It is further proved that this litigation process commenced only after the plaintiff falling out with his father. Furthermore, I am of the view that the plaintiff's conduct and the behaviour towards the other siblings in the family and some differences among the family members would certainly have made the defendant to evict the plaintiff from the property in question. 

[42].	Therefore, it is my considered opinion that the defendant never intended to charge any rent from the plaintiff and hence the defendant cannot now ask the rent arrears from the plaintiff.

[43].	Further, the defendant in his statement of defence or in the counterclaim has not sought any remedy to evict the plaintiff from the property. Therefore, I am not inclined to make any order for eviction. 

[44].	Upon consideration of the above facts, I conclude that neither the plaintiff nor the defendant have proved their respective claims against each other. 

[45].	On the above premise, I dismiss the plaintiff's action and also dismiss the defendant's counterclaim.

[46].	Parties have to bear the costs.

Pradeep Hettiarachchi
JUDGE