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Kumar v Singh [2014] FJHC 730; HBC58.2014L (9 October 2014)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 58 OF 2014L

BETWEEN:

ROBIN ROHNIL KUMAR aka ROBIN RONEEL KUMAR of Navo, Nadi, Radiographer as the administrator for the Estate of RAJ KUAR late of Navo in the District of Nadi, in the Republic of Fiji, Domestic Duties, Deceased
Plaintiff

AND:

BIR BASI SINGH of Navo, Nadi, Businessman
Defendant

Before : Master H Robinson

Appearances: Ms. Patricia of Vasantika Patel for the Plaintiff
Mr. Chand M. of Pillai Naidu for the Defendant.

Date of Hearing : 22 September 2014
Date of Ruling : 9 October 2014

RULING
Introduction

[1] This is an application by Summons for vacant possession under Section 169 of the Land Transfer Act. The Summons directed the Defendant to appear before the Master in Chambers at the High Court in Lautoka on the 20 May 2014 at 8:30 AM to show cause why he or his servants and/or his agents should not give immediate possession to the plaintiff of all that property known as Crown Lease No. 13170 known as Lot 2, SO 1661 part of Navo, Nadi in the province of Ba, and with an approximate area of 405 sq. metres. The summons further sought an order for costs against the defendant.

[2] Although the Summons did not specify which limb of section 169 was relied upon although it appears that the first limb, as the last registered proprietor, appears appropriate. The summons was issued on the 16 April 2014 and served on the same date and was to be called on the 20 May 2014 and is well within the 16 day stipulated under section 170 of the Land Transfer Act.

The Affidavits

[3] The application was supported by the affidavit of the Plaintiff which states that:-

1. THAT I am the Administrator De Bonis Non of the Estate of the late Raj Kuar under a Grant of letters of Administration De Bonis Non No. 51170.
   
2. THAT I am the registered proprietor under Transmission by death No. 762360 of all that property comprised in Crown lease No. 13170 known as Lot 2, SO No. 1661, part of Navo formerly Lot 1 ND 5156 containing 5342 square meter situated in the Province of BA AND District of Nadi.
   
3. THAT the Director of Lands has granted his consent to the proceedings on 18th March 2014.
   
4. THAT the defendant is in occupation part of that said land comprised in the said Crown Lease No. 13170 and operating a garage, known as "Town End Motor Repairs on the said premises.
   
5. THAT the defendant has been and presently is in occupation of the said premises.
   
6. THAT by letter dated 27th November 2012, the Plaintiff caused a Notice to be served on the defendant requiring him to quit from the said premises and hand over the possession.
   
7. THAT despite the said notice to quit, the Defendant is in occupation of the said premises illegally and is trespassing over the Plaintiff's property and continues to be in wrongful and unlawful occupation thereof.
   
8. THAT by reason of the matters aforesaid I pray to this Honourable Court for an order for immediate vacant possession of the said property against the Defendant and/or his servants and/or agents.
   

[4] In support of the facts deposed under paragraphs 1 & 2 the plaintiff annexed in his affidavits copies of the Letters of Administration De-Bonis Non No. 51170 granted to the plaintiff on the 11 May 2011 and Crown Lease No. 13170 which shows the subject land being transmitted to the plaintiff on the 15 August 2012. These facts were not in dispute. The plaintiff further and in support of the allegations contained in paragraph (4) provided photographs of the property occupied by the Town End Motor Repairs and a plan showing the area occupied by the defendant.

[5] The Defendant in opposing the application deposed an affidavit giving his reasons or cause to remain on the property as:-

1. That as to the contents of paragraphs 4 and 5 of the said affidavit I admit the contents and say that I have been in occupation of the area on which I have constructed my mechanical workshop known as Town End Motor Repairs and have been operating the same with the consent and permission of the plaintiff and his family since 1994 at a rental initially of $200.00 monthly which was later increased, and I was until 2012 paying $300.00 monthly and this was inclusive of water charges. I also paid a portion of the town rates once this area became part of the municipality of Nadi (annexed herein and marked "BBS1" is a summary of rental since my occupation).
   
2. That I admit the contents of paragraph 8 of the said affidavit but dispute the contents of the same as I had spent my resources and constructed a garage and fence the property at a approximate cost of $35,000.00 as shown in the plaintiffs said affidavit as annexures RRK4 – A, B, C and obtaining three phase electrical power and this was with the consent and authorisation of the plaintiff and his father and grandmother.
   
3. That I deny the contents of paragraph 9 of the said affidavit and state that I am in lawful occupation of the property as I have also paid town rates to the plaintiff and business licence to the Nadi Town Council up until 2014 after which the council refused to accept the same at the instigation of the plaintiff.
   
4. That I object to the content of paragraph 10 of the said affidavit and state that I have acted to my prejudice and detriment due to the plaintiffs conduct and representations in allowing me to construct and operate my business and giving me permission to connect three phase power and pay business licence.
   
5. That I ask that this Honourable Court:-
   
   • (a) To dismiss the Plaintiffs action;
     
   • (b) If the court grants the orders sought by the plaintiff than I be granted the following orders;-
     
     • (i) I be allowed to operate my business for further twelve (12) months and thereafter relocate by business.
       
     • (ii) I also request that I be allowed to remove my structures on the property including fencing.
       
     • (iii) I be compensated for my loss
       
     • (iv) Costs.
       

[6] The plaintiff replied to the above affidavit by stating so far as is relevant the following, that he was a twelve year old in 1994 when the defendant made the arrangement to use the property and that he is now the registered proprietor of the property. That the defendant is at liberty to remove the iron and timber structure on the property, including the fencing. That the defendant is in illegal occupation, has shown no right of possession and the Court should grant immediate possession.

Determination

[7] Both parties gave useful written submissions at the hearing and the Court is great-full for their assistance. There is no dispute that the plaintiff is the last registered proprietor of the property, but what is in disputed is whether the defendant on entering into an agreement to use the property in 1994 with the plaintiff's predecessor in title was sufficient cause for him to remain.

[8] The defendant's counsel submits that such an arrangement raises the issue of equitable estoppel. This arose where a landowner, (the plaintiff's predecessor in title) in allowing and encouraging him to use the land in the way in which it did has raised an expectation or belief that an interest on the land will be granted to him. As a result the defendant expended funds to build a garage and build fences on the property.

[9] The plaintiff's counsel submits that the lease is a protected lease and that section 13 of the Crown Lands Act the land cannot be alienated without the consent of the Director of Lands and that no consent was granted.

[10] In my view the application of section 13 of the Crown Lands Act is critical in determining this matter.

The Crown Lease annexed to the affidavit in support of the summons clearly states on the first page that.. "It is expressly declared that this lease is a Protected Lease under the provisions of the Crown Land's Act." The lease is further subject to the following covenants and provisions that is to say-

(1) ----

(2) The lessee shall not transfer, sublet, mortgage, assign, or part with the possession of the demised land or any part thereof without the written consent of the lessor first had and obtained.

(3) ---etc.

[11] Section 13 of the Crown Lands Act which refers specifically to protected leases states:-

13.-(1) whenever in any lease under this Act there has been inserted the following clause:-

"This lease is a protected lease under the provisio the Crow Crown Lands Act"

(hereinafter called a protected lease ) it shall not bful for ther the lessereof to alienate or deal with the land comprised in the lease of any part thereof, whether ther by sale, transfer or sublease or in aher m whatsoever, nor to mortgage, charge or pledge thge the same same, without the written consent of the Director of Lands first had and obtained, nor, except at the suit or with the written consent of the Director of Lands, shall any such lease be dealt with by any court of law or under the process of any court of law, nor, without such consent as aforesaid, shall the Registrar of Titles register any caveat affecting such lease.

Any sale, transfer, sublease, assignment, mortgage or other alienation or dealing effected without such consent shall be null and void.

[12] It is clear from the affidavits filed by both parties that the defendant and those with whom he had entered into an agreement to use the land had not obtained the written consent of the Director of Lands. The failure to obtain the consent of the Director of Lands has a detrimental consequence to the defendant. I agree with the submission of the plaintiff's counsel that the leading authority in Fiji regarding the implication of the failure to obtain consent in any dealing with Native Land or State land is the Privy Council's decision in Charmers –v- Pardoe (1963) 3 ALL ER 552. The question which needs to be answered is whether the plaintiff or his predecessor in title by entering into this 'agreement" with the defendant alienated the land in the manner referred to section 13. The defendant has provided affidavit evidence that the agreement allowed him to use the land for a monthly rental. This arrangement was (and still is) for all intents and purposes a sublease which was entered into without the consent of the Director of Lands. The agreement to alienate or deal with the land in this manner was considered to be null and void in Charmers –v- Pardoe and that position has been the case in matters of this nature ever since.

[13] In the defendant's counsel's submission reference was made to the statements of Justice Pathik in Ajmat Ali –v- Mohammed Jalil (CA44/81) which elaborates further the requirement of section 172 of the Land Transfer Act. The comments referred to were that:-

It is not enough to show possible future right to possession. That is an acceptable statement as far as it goes, but the section continues that if the person summoned does not show cause the judge shall dismiss the summons; but there added the very wide words "or he may make an order and impose any terms he may think fit". These words must apply though the person appearing has failed to satisfy the judge, and indeed are often applied when the judge decides that an open court hearing is required. We read the section as empowering the judge to make any order that justice and the circumstances require. There is accordingly nothing in section 172 which requires an automatic order for possession unless "cause" is immediately shown. (emphasis mined (sic))

[14] What the defendant's counsel appears to be submitting was for the court to use its discretion to make orders other than immediate vacant possession so that justice could be done under these circumstances. Whether this meant that the defendant's expectation under the "agreement" gave rise to a right of possession and therefore the Court has a wide discretion by perhaps imposing such terms to "regularise" the illegal act by ordering that consent be obtained retrospectively is unclear. I am certain that this was not the intention but what is clear though is that the plaintiff ought not to gain from what the defendant has contributed to the property. The Court however could not make any further orders to help crystallise the expectation of a right of possession from an agreement which is null and void ab initio. This aspect was also dealt with in Charmers –v- Pardoe. In respect of Mr Chalmers' claim for an equitable charge or lien over the land because of the substantial buildings he had erected on the land, the Privy Council in said:-

The claim is based on the general equitable principle that, on the facts of the case, it would be against conscience that Mr Pardoe should retain the benefit of the buildings erected by Mr Chalmers on Mr Pardoe's land so as to become part of the land without repaying to Mr Chalmers the sums expended by him in their erection...

There can be no doubt on the authorities that where an owner of land has invited or expressly encouraged another to expend money on part of his land on the faith of an assurance or promise that that part of the land will be made over to the person so expending his money a court of equity will prima facie require the owner by appropriate conveyance to fulfil his obligation; and when, for example for reasons of title, no such conveyance can effectively be made, a court of equity may declare that the person who has expended the money is entitled to an equitable charge or lien for the amount so expended.

[15] In Mistry Amar Singh –v- Kulubya (1963) 3 ALL E R 499 the Privy Council held that a registered owner was entitled to possession because his right to possession did not depend on illegal agreements. Followed in Fiji in Ram Kali –v- Saten (CA 97/11); Chand –v- Prakash (2010) FJHC 364. Justice Gates (as he then was ) in Indar Prasad and Bidya Wati –v- Pushp Chand (2010) 1FLR 164 stated as that:-

"Section 13 of the State Lands Act prohibits any dealing in land which is comprised in a State Lease, without the Director of Lands consent. Whatever the nature of the permission granted to the Defendant to occupy the relevant State Land, it was clearly unlawful because it lacked the Director's consent. .... Section 13 of the State Lands Act would appear to be a complete bar to any equitable estoppel arising in the defendants favour. I am not satisfied on the defendant's evidence that he comes within any of the equitable exceptions or that he has right to possession."

The Outcome

[16] The result therefore is that the agreement or arrangement made by the defendant with the plaintiff's predecessor in title having been made without the consent of the Director of Lands as is required on protected leases is illegal. It follows that anything done pursuant to that agreement is void and unenforceable. The defendant therefore has no right to possession as not right follows from an expectation of a possessory right obtained unlawfully. The plaintiff's application therefore succeeds in respect of vacant possession therefore succeeds although not immediately.
Costs

[17] Given the circumstances of this case I make no orders as to costs each party are to pay their own costs.

Orders

The orders are therefore as follows:-

(1). The plaintiff's application by summons dated 16 April 2014 for vacant possession is granted but stayed for six months from the date of this Order;

(2). That in the period of six months at which the order for vacant possession is stayed the defendant is to remove all his own structures or improvement from the property;

(3). The plaintiff or his agents or servants are prevented and or restrained from interfering with the improvements on the said property in any way during the six months in which the order for vacant possession is stayed.

(4). Each party are to pay their own costs.

.......................................
Harry Robinson
Master of the High Court
At Lautoka

9 October 2014