IN THE HIGH COURT OF THE REPUBLIC FIJI
WESTERN DIVISION AT LAUTOKA

No. 87 of 2014L

IN THE MATTER of Section
169 of the Land Transfer Act.

BETWEEN:

MUNIAMMA 
as the sole executor and trustee of the estate
of Krishna Sami of Wailailai, Ba, Domestic Duties.
Applicant

AND:

SHASHI KANTA and ASWEETA ASHNI 
both of Wailailai, Ba  Domestic Duties and School Teacher respectively.

Respondent
Before	: Master M H Mohamed Ajmeer
Counsel : Mrs S Naidu with Mr V Sharm for the plaintiff
Mr E. Maopa for the defendants

Date of Hearing : 13 August 2014
Date of Judgment : 10 September 2014

JUDGMENT
Introduction

[1] 	This is a summons filed on 30 May 2014 by plaintiff (the application) calling the Defendants do show cause why they should not give up vacant possession to the Plaintiff of the premises known as Sigawe and Nakoroqicu and containing seven acres be the same a little more or less and situate in the District of Bulu in the Island of Vitilevu and being Lot 59 on deposited plan No. 20052 under CT 11322 without damaging or altering the property (the property). 

[2] 	The application is supported by an affidavit of Muniamma sworn and filed on 30 May 2014. That affidavit annexes nine documents marked ‘M1- M9’.

[3] 	The defendants oppose the application. In opposition, they filed an affidavit of Shashi Kanta sworn on 9 July and filed on 10 July 2014. That affidavit annexes two documents marked ‘SK1 & SK2’.

[4] 	The application is made pursuant to section 169 of the Land Transfer Act.

Background

[5] 	Muniamma, the plaintiff (M) is the sole Executrix and Trustee of the Estate of Krishna Sami of Wailailai, Ba. Shashi Kanta, 1st named respondent (SK) is the daughter-in-law of M. SK was married to M’s son, Shiu Sami (SS). Ashweeta Ashni, 2nd named respondent (AA) is M’s granddaughter. M’s husband was Krishna Sami (KS). KS died on 19 December 2007 leaving a Will dated 27 September 1991. Under the said Will, KS appointed M to be his Executrix and Trustee of his Estate. KS gave ¼ acre of his land to his daughter namely Mohini Lata (ML) to live and built a house on. ML was not allowed to sell it and in case she moves out permanently, then she would not be entitled to any share of KS’s estate (Clause 3 of the will). Under clause 5 of his Will, KS gave M all the rest and residue of his real and personal property of whatsoever kind and where so ever situate of which he shall be possessed or to which he shall be entitled or over which he shall have any disposing power at his death unto M absolutely. Apart from this, according to M, nothing was willed to M’s other children including her late son SS. Nothing was also willed to the late SS’s children and wife, SK. 

[6] 	Prior to his death in a motor vehicle accident, KS had bought a freehold land (the property). 

[7] 	In May 2008 M obtained probate with the Will annexed. By virtue of the said probate, the property was transferred to M by way of transmission by death as the Executrix and Trustee of the Estate of KS and then to M as the beneficiary of the said estate. These two transfers took place simultaneously on 29 September 2011. SS was only given a piece of land to live in and built a house on it. 

[8] 	In the meantime, SK and AA filed an Action (No. 171 of 2013 in the Lautoka High Court, claiming that they are entitled to live on the said land on the basis that it was given to SS. In that case, Justice Anare Tuilevuka, gave his ruling on 28th March, 2014 stating that the Plaintiff needed to file further Affidavit Clarifying the point whether the late Shiu Sami did leave a Will or not and if he did, and assuming either of the Plaintiffs is the duly appointed executor/trustee under that Will, then he may make appropriate directions on how the case should proceed and if the same cannot be provided the matter would be struck out and so the matter was adjourned to 17th April, 2014. On 17 April, 2014 the matter was struck out.

[9] 	It is that in these backgrounds the plaintiff seeks vacant possession of the property from the defendants.

[10] 	Before I proceed further, I think it would be relevant to briefly look at what SK states in her affidavit in opposition. She states that, ‘I state that we are entitled to the shares in the Estate. Further we state that we are entitled to the share of my late husband, Shiu Sami, given to him by the late Krishna Sami. My father-in-law gave my late husband a portion of 7 acres of land to live in. we have built our 3 bedroom house on the allocated portion since my husband was alive and we lived there until today even when my husband passed away in 2004. We have been living there for the last 30 years. Further I state that the taxi which is operating in Ba belongs to one Mukim Begg. I state that we are legally living on the land as we have equitable interest for the last 30 years’ (Emphasis provided).

The Law

[11] 	Sections from 169 to 172, the Land Transport Act (LTA) are the applicable to summary application for eviction. These sections, so far as material, provide:

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)	... ;

(c)	...

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, mortgage 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. [Emphasis provided].

Determination

[12] 	This is an application for summary eviction filed pursuant to 169a, LTA. Under that section, the last registered proprietor 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.

[13] 	The common ground is that the applicant is the last registered proprietor of the property. The person that summons a person to show cause is the applicant because the section so describes. So, the person invited to show cause may be called ‘the respondent’. It would be proper to call the parties in these proceedings as ‘applicant and respondent’ rather than ‘plaintiff and defendant’.

[14] 	As the last registered proprietor, the applicant is entitled to summon the respondents who occupy a portion of the property.

[15] 	According to section 170, LTA, the summons must give particulars of the property. The summons filed by the applicant provides sufficient particulars required to identify the property. By doing so, the applicant has complied with one of the requirements contemplated in that section. Another requirement that is to be fulfilled by the applicant is that the summons must require the respondent to appear at the court on a day not earlier than sixteen (16) days after the service of the summons. The summons was served on the defendants on 3 June 2014, according to affidavit service filed therein, returnable on 26 June 2014, day which is 22 days after the service of the summons. Therefore, there has been compliance with all requirements of section 170.

[16] 	Section 171, LTA has no application to this case. That section will be applicable when the respondent defaults in appearance on the hearing day. Under s. 171, order of possession will be granted to the applicant, if the respondent does not appear on the hearing day of the summons.

[17] 	In this case, the defendants appeared and filed their affidavit in opposition. Hence section 172, LTA applies. That section states that, if the person summoned (respondent) 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 (applicant).

[18] 	At issue in this case is the defendant whether the respondents have right to possession of the portion of the property.

[19] 	The respondents seek to show that they are entitled to possession of the portion of the property by reason of proprietary estoppel.

Proprietary Estoppel

[20] 	Mr Maopa, counsel for the respondent submitted that, being the widow of SS and having living there in a 3 bedroom house for 30 years in an allotment land given by late KS the respondent has equitable interest in the estate of KS. He contended therefore the respondent has established an arguable defence and the right to be in possession of the land.

[21] 	In support of his argument, Mr Maopa relies on the dictum of White J in 
Denny v Jessen [1977] 1 NZLR 635 at 639. White J summarized 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 CA 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 Case 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). (Emphasis provided).

[22] 	At para 153, 16(2) Halsbury's Laws (4th Ed) about proprietary estoppel states as follows:

The requirement of writing in the Law of Property (Miscellaneous Provisions) Act 19891 may also not apply where claims are based on proprietary estoppel, which is often argued as an alternative where it is not possible to show the common intention needed to establish constructive trusts. An estoppel may arise where a property owner makes a representation to another party which is relied on by that other party and which leads that other party to act to their detriment. The representation usually relates to the current or future ownership of land or of interests in land. If the party to whom the representation has been made acts to their detriment in reliance on that representation, the representation cannot be revoked and the courts will enforce it despite the lack of a written agreement. In various cases the courts have accepted a wide range of 'acts to the detriment' including: the expenditure of money on a property in which the claimant had been led to believe she had an interest, looking after the property owner and working in his house and garden, continuing in the property owner's employment and selling land without reserving a right of way over it.

[23] 	I now turn to the evidence directly relevant to the proprietary estoppel claim.

[24] 	At para 8 & 13 of the affidavit, the respondent states that, my father-in-law gave my late husband a portion of 7 acres of land to live in. We have built our 3 bedroom house on allocated portion since my husband was alive and we lived there until today even when my husband passed away in 2004. We have been living there for the last 30 years. My husband used to work and assist his father on the cultivation and harvesting of sugarcane farm. We are legally living on the land as we have equitable interest for the last 30 years.

[25] 	It is to be noted that the above affidavit evidence was not disputed by the applicant. The only challenge raised by the applicant is that, there is no evidence to show that the house built the plaintiffs (sic) for them. No evidence to show how much was spent to build the house. Nor have they provided any evidence to establish to either constructive or resulting trust. 

[26] 	The 1st respondent's (SK's) husband at the request or with the encouragement of the applicant's husband (then proprietor), have spent money and built a house in expectation of being allowed to stay there. In fact, SK's husband had been staying until 2004 when he passed away. After that SK continues to stay there with her daughter. SK's father-in-law died in December 2007, leaving a Will dated 27 September 1991. Thereby he (SK' father-in-law) bequeathed all the rest and residue of his real and personal property to the applicant. It will be noted even after KS's (testator) death in 2007 the respondent continues to live on that portion of the property. These facts support creation of proprietary estoppel against the proprietor. Lord Denning in Chalmers's case (supra) observed that 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.

[27] 	The applicant obtained a probate in May 2008 and the property was transferred in September 2011 to her by way of transmission by death as the Executrix and Trustee and then as beneficiary of the Estate of her husband, KS. 

[28] 	Mrs. Naidu, counsel for the plaintiff contended that from the Will of late KS it is very much clear of the intention of the Testator that he intended to give his rest and residue Estate to his wife and not to his son Shiu Sami or his wife or children. But another argument also possible, the respondents rightly argue that the Will only provides for all rest and residue of real and personal property are bequeathed to the applicant, and the portion of the land given to the late Shiu Sam does not include. By saying '… all rest and residue of real and personal property…' the Testator may have intended to exclude the portion of the property given to late Shiu Sami to build and live in. Only judicial interpretation of the Will settle this issue.

[29] 	Section 172, LTA requires the respondents to show cause why they refuse to give possession of the property and to prove to the satisfaction of the judge that they have a right to the possession of the property in question. The applicant's application will be dismissed with the cost against her if the respondents proved to the satisfaction of the judge that they have a right to the possession of the land. That is not to say that final or incontrovertible proof of a right to remain in possession must be adduced. What is required is to show some tangible evidence establishing a right or supporting an arguable case for such a right must be adduced.

[30] In Morris Hedstrom Limited v. Liaquat Ali (Action No.153/87SC at p2), Fiji Supreme Court observed that:

'Under section 172 the person summoned may show cause why he refused to give possession of the land and 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 defendant 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.' (Emphasis added)

Conclusion

[31] 	The respondents have adduced unchallenged evidence directly relevant to the proprietary estoppel claim. The 1st respondent's (SK's) late husband (SS) following his father's (KS) representation built a house on the allocated portion of the property and lived therein until he died in 2004. His wife (SK) has been living there with her daughter, 2nd respondent even after her husband's passed away. The respondents have been living there for the last 30 years. In my judgment, the respondents' affidavit clearly shows some tangible that they have a proprietary estoppel claim against the applicant. 

[32] 	An estoppel may arise where a property owner makes a representation to another party which is relied on by that other party and which leads that other party to act to their detriment. In this case, the applicant's husband made a representation to the 1st respondent's husband (SS) that he (SS) may build a house on the portion of the property and live therein. The 1st respondent's husband relied on his father's representation and acted to his (SS) detriment. The representation usually relates to the current or future ownership of land or of interests in land. If the party to whom the representation has been made acts to their detriment in reliance on that representation, the representation cannot be revoked and the courts will enforce it despite the lack of a written agreement.

[34] 	In the circumstances, I am satisfied that there respondents have proven a right to possession of the property. I am also satisfied that they can establish an arguable defence that whether the Testator excluded the portion given to his son (SS) when bequeath the property to the applicant.

[35] 	The previous case brought by the respondents was dismissed on technical ground. The court did not consider merit of the case. Res judicata will not apply. The respondents may bring another case against the applicant afresh, if they so wish.

[36] 	Since the respondents have shown on affidavit evidence that they can establish proprietary estoppel, they will certainly have right to possession of property, which would preclude the granting of an order for possession under Section 169 procedure. I would therefore dismiss the application with costs summarily assessed at $350.00 payable to the respondents by the applicant in 21 days. 

................................................
M H Mohamed Ajmeer
Master of the High Court

At Lautoka

10/09/14