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Bi v Bi [2015] FJHC 930; HBC63.2012 (19 November 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No. HBC 69 of 2014

IN THE MATTERof an application under section 169 of the Land Transfer Act Cap 131, for an order for vacant possession.

BETWEEN:

KHAZIZA a.k.a KHATIZA BIof Batinikama, Labasa, Domestic Duties.
PLAINTIFF

AND:

HAMIDA BI of Batinikama, Labasa, Domestic Duties.
DEFENDANT

Counsel : Mr. Sharma, S. for the Plaintiff
Mr. Prasad, S. for the Defendant

Before : Acting Master S. F. Bull
Judgment : 19 November 2015

JUDGMENT

Introduction

1. By an originating motion and supporting affidavit filed on 11 December 2014, the Plaintiff seeks the ejectment of the Defendant from Crown Lease No. 18075, formerly Lots 2 and 10M 2895 and Lot 4 on Plan No. SO 3647, of which the Plaintiff is the registered proprietor and which the Defendant is allegedly occupying illegally without the consent of the Plaintiff or the Director of Lands.
   

The Affidavit in Support

2. The Plaintiff deposes that she is the lessee of the property comprised in Crown Lease No. 18075 known as Labasa (Pt of) formerly Lots 2 and 10 M2895 and Lot 4 on Plan No. SO 3647 situated at Batinikama, Labasa. A copy of the Crown Lease forms Annexure A of her affidavit.
   
3. The Defendant is her daughter in law, who, without any legal or equitable rights to do so, is occupying her property on Crown Lease 18075 without her consent.
   
4. On 29 January 2014, a notice to quit was served on the Defendant but she continues in illegal occupation of the said property. A copy of the notice to quit is marked Annexure B.
   

The Opposition

5. The Defendant denies that she is occupying the place illegally. She avers that she was invited to stay on the land and she did so, caring for the Plaintiff and her husband. She was promised that the land would be transferred to her. Relying on that promise, she left her place in Nasarawaqa and with her husband, came to live with her in laws, maintaining and renovating the place. Though her husband later left her and went to live in Namara, she continued to live with the Plaintiff on the land. The Plaintiff assured her that the land would be transferred to her name. The Plaintiff later went to live with her son (the Defendant’s husband in Namara) where she changed her mind and issued proceedings against the Defendant in the High Court. When that failed, she returned to Batinikama and chased her from the place.
   
6. While living in the house, she spent a lot of money to maintain, repair and build certain parts of the house since the Plaintiff had had no income at all. The Plaintiff has not obtained the Director of Land’s consent in bringing this application and since the land in question is a protected lease, dealing with it without the consent of the Director of Lands is illegal. She prays for the Plaintiff’s application to be struck out with costs on an indemnity basis.
   

The Reply

7. The Plaintiff denies asking the Defendant to live with them in Batinikama. She says that the lease for the land on which the Defendant and her son had been living expired and so she and her husband offered to provide a place for them to live. Neither she nor her husband had sought any form of assistance or support from the Defendant. Her husband had never been bedridden and was fit and energetic until a few days prior to his death. The Defendant had never looked after him and it was she who did so at all times. No promise was ever made to the Defendant by either herself or her husband for the transfer of the property to her. She has withdrawn the consent given to the Defendant to live on her property. The Defendant has failed to show any tangible evidence of a right to continue in possession of the land, or that there are serious issues to be tried, and these summary proceedings are therefore the proper way of bringing this application.
   

The submissions

8. Mr. Sharma submits that the Plaintiff is the registered lessee of the property comprised in Crown Lease No. 18075 known as Labasa (Pt of) formerly Lots 2 and 10 M 2895 and Lot 4 on Plan No. SO 3647 situated at Batinikama, Labasa. The Defendant is occupying the said property without the consent of the Plaintiff and has not shown any right to occupation. The Plaintiff does not require the consent of the director of lands to institute these proceedings against the Defendant.
   
9. Reliance is placed on Prasad v Chand (2001) FJHC 289; [2001] FLR 164 (30 April 2001.
   
10. Mr. Prasad for the Defendant submits that the Plaintiff has not stated the subsection of s. 169 LTA that this application is being brought under and so it needs to satisfy the Court of the different requirements of section 169 (a), (b) and (c) of the Act.
    
11. Mr. Prasad also submits that the land in question is a protected lease under the Crown Lands Ordinance. Pursuant to section 13 of the State Lands Act, it is unlawful for the lessee thereof to deal with land comprised in the land without the written consent of the Director of Lands first had and obtained.
    
12. It is also submitted that no such lease shall be dealt with in any court of law or under process of any court without the prior written consent of the Director of Lands.
    
13. The Defendant is the Plaintiff’s daughter in law who has continuously lived on the property and maintained not only the property but also members of the household. The Plaintiff had allowed the Defendant to live on the property and made a promise to her. Relying on that promise, the Defendant left her home in Nasarawaqa to her detriment. In this way, she has “secured” an equitable interest in the property. The Plaintiff cannot rely on section 169 (a) and allege that the Defendant is a trespasser. Nor can the Plaintiff rely on section 169 (b) or (c), since the Defendant is not a tenant.
    
14. The Notice to Quit is defective in light of the absence of any evidence of service of the said notice.
    
15. On the other hand, the Defendant, by her affidavit sworn on 22 May 2015, has provided tangible evidence establishing her right to possession “and eventual ownership of the property.” She was promised that she would be given Crown Lease 18075 together with the improvements thereon, and had maintained the property over the years. Even after her husband left her and went to live in Namara, the Defendant continued to live with the Plaintiff on the said property. She maintained and renovated the property with money she earned from selling vegetables over the years, relying on the Plaintiff’s assurance that the property would eventually be hers. Mr. Prasad says the doctrine of promissory estoppel prevents the Plaintiff from evicting the Defendant.
    
16. Mr. Prasad says there are serious triable issues involved in this matter, that the summary procedure is not suitable for this application, and that the Defendant who is the daughter in law of the Plaintiff cannot be ejected under section 169.
    

The law

17. Though the application does not specifically state so, it is clear that the Plaintiff relies on section 169 (a) in bringing this application. That section requires the Plaintiff to prove that she is the last registered proprietor of the property and therefore has locus to bring this action.
    
18. Thereafter, the onus shifts to the Defendant to show cause as to why vacant possession should not be granted. In accordance with section 172 of the LTA, she needs to satisfy the Court, on affidavit evidence, that she has a right to possession. (Muthusami v Nausori Town CouncilF.C.A. 23/86).
    
19. There is no need to prove conclusively a right to possession and it is sufficient if the Defendant proves that there is some tangible evidence establishing the existence of a right. (Morris Hedstroms Ltd v Liaquat Ali (Action No. 153 of 1987).
    
20. In Sharma v Tabuela [2004] FJHC 183; HBC0026.2004 (15 March 2004), the Court stated that sub-section (b) and (c) of the Act applies where
    

...there is a landlord tenant relationship. The words ‘lessee’ mean proprietorof a lease or sublease and lessor is a proprietor of the land leased and includes a sublessor - Section 2. Proprietors mean the registered proprietor of land or any estate or interest therein –Section 2. Registration in title is the key to applications under Section 169.

Analysis

21. Section 5 (c) of the Land Transfer Act (the LTA) sets out lands that are subject to the provisions of that Act. They include “...all leases of Crown land granted pursuo the proe provisions of the Crown Lands Act...” (now State Lands Act).
    
22. The land in question is Crown Lease No. 1 formerly Lots 2 and 10 M 2895 and Lot 4 on Plan No. SO 364O 3647. It is a protected lease under section 13 of the State Lands Act, and, being registered, is subject to the provisions of, inter alia, section 169 of the LTA.
    
23. The Defendant raises a preliminary objection that since the land in question is a protected lease, an action such as this under section 169 of the LTA cannot be instituted without the written consent of the Director of Lands first had and obtained.
    
24. The question as to whether the consent of the Director of Lands is required to institute an action under section 169 in respect of State leases was dealt with by the Court in Prasad v Chand [2001] FJHC 289; [2001] 1 FLR 164 (30 April 2001). Referring to section 13 of the Crown Lands Act (now State Lands Act), and section 171 of the Land Transfer Act, Gates J (as he then was) stated:
    

At first sight, both sections would seem to suggest that an Applicant should first obtain the Director's written consent prior to the commencement of section 169 proceedings and exhibit it to his affidavit in support. However I favour Lyons J.'s approach in Parvati Narayan v Sure60;Prasad (unreponreported) Lautoka High Court Civil Action No. HBC0275 of 1996L 15th August 1997 at p 4 insofar as his Lordship found that consent was not d at all since the:

"section 169 application (won (which is the ridding off the land of a trespasser) is not a dealing of such a nature as requires the Director's consent."

This must be correct for the Director's sanction is concerned with who is to be allowed a State lease or powers over it, and not with the riddance of those who have never applied for his consent.

And later:

...The court is not concerned with the grant of or refusal of, consent by the Director, provided such consent is given lawfully. Consent is solely a matter for the Director. The statutory regime appears to acknowledge that the Director's interest in protecting State leases is supported by the court's order of ejectment against those unable to show cause for their occupation of the land which is subject to the lease. The court is asked to make an order of ejectment against a person in whose favour the Director either, has never considered granting a lease, or has never granted a lease. The ejectment of an occupier who holds no lease is therefore not dealing with a lease. Such occupier has no title. There is no lease to him to be dealt with. The order is for his ejectment from the land. There is no need for a duplicating function, a further scrutiny by the Director, of the Plaintiff's application for ejectment either before or after the judge gives his order.

25. Ultimately, the Court found that it was not necessary to prove the Director of Land’s consent to the institution of proceedings for the ejectment of a mere occupier without a lease.
    
26. In the instant case, the Defendant is not a lessee. At the most, she is a licensee occupying the Plaintiff’s land. In light of Prasad (supra) I hold that the consent of the Director is not necessary for the institution of these proceedings.
    

Does the Plaintiff have locus to bring this action?

27. The relationship between the Plaintiff and the Defendant is certainly not one of landlord and tenant, and so section 169 (b) and (c) therefore do not apply. It is clear that this application is being brought under section 169 (a), requiring the Plaintiff to first prove that she is the last registered proprietor of the land the subject of these proceedings.
    
28. A copy of Crown Lease No. 18075, Labasa (Pt of) formerly Lots 2 and 10 M 2895 and Lot 4 on Plan No. SO 3647 forms Annexure A of the Plaintiff’s affidavit in support. The first proviso to the lease states that the lease is a Protected Lease under the provisions of the Crown Lands Act. The lease was registered with the Registrar of Titles on 6 July 2010 in the name of the Plaintiff, Khaziza a.k.a Khatiza Bi, with the lease commencing 1 January 2009, for a period of 99 years.
    
29. The Defendant does not dispute that the Plaintiff is the registered lessee of the land.
    
30. Pursuant to section 169 (a) of the Act, I find that the Plaintiff has locus to bring this action, she being the registered lessee of Crown Lease No. 18075.
    

The notice to quit

31. The Defendant says she was never served with a notice to quit. Indeed, there is no affidavit of service to say that there has been service of such a notice on the Defendant.
    
32. In Premji v Lal [1975] FJCA 8; Civil Appeal No 70 of 1974 (17 March 1975), cited by the Court in Prasad (supra), Gould VP stated:
    

Proof of service of a notice to quit on a date when it will, according to its terms, be effective to terminate the tenancy, is essential to the jurisdiction of the court, in a case of this nature, to make the ejectment order applied for.

33. Unlike Premji(supra), the instant case does not involve a tenancy. In Prasad (supra), the Court had this to say:
    

Order 113 procedure is appropriate for ejectment proceedings where the land "is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent...". The affidavit in support in such cases does not have to provide evidence of a prior Notice to Quit. After all, if no right to occupy the land is shown to the judge and the Defendant is not a former tenant, it is doubtful whether a notice to quit need be served or proved in order to found jurisdiction [see Ord. 113 r.3, and section 169(c) Land Transfer Act]. Solicitors will no doubt continue to serve Notices to Quit in all cases as a matter of clarity and of caution. As was said in Vallabh Das Premji (supra) at 131 "each case must depend on its own facts and circumstances." Had this application involved the termination of a lease, the lack of proof of the date of service of a Notice to Quit would have proved fatal: Vallabh Das Premji at 132, followed in Abdul Aziz v Kapadia &.(Unb>(Unreported) FCA Civil Appeal No. 53 of 1978 30th November 1978 at p 5.

34. Given that the instant case does not involve a tenancy but the removal of an occupier without a lease, I hold that the failure to adduce evidence of service of a notice to quit is not fatal to the application.
    

Has the Defendant shown cause?

35. Section 172 of the Act requires the Defendant to show cause why she refuses to give possession of the land and must satisfy the Court she has a right to possession. The questions for the Court’s determination are, whether the Defendant has a right to occupy, or has an interest in the property, in light of section 13 of the State Lands Act. This section prohibits the alienation of, or any dealing with the land without the consent of the Director of Lands first had and obtained.
    
36. It is submitted that the fact that the Plaintiff had invited the Defendant to her detriment to come live on the land on the promise that the land would be transferred to her gives her, in equity, a right to the property and the Plaintiff cannot now eject her from the land.
    

Promissory estoppels

36. Halsburys Laws of England, 4th Ed, Vol. 6, at 1514 defines promissory or equitable estoppel as:
    

When one party has, by his words or conduct, made to the other a clear and unequivocal proor assurance which was iwas intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance t afte afterwards be allowed to revert to their previous legal relations as if no such promise ourance had been maen made b, but he must accept their legal relations subject to the qualification which he himself half has so introduced.

1. Section 13 of the State Lands Act provides:
   

(1) Whenever in any lease under this Act thas been inserted the the following clause:-

"This lease is a protected lease under the provisions of the Crown Land0;Act"

(hereinafter called a protected leat shall not be lawful for tfor the lessee thereof to alienate or deal with the land comprised in the of a of any part thereof, er by sale, transfer or subr sublease or in any other manner whatsoever, nor to mortgage, charge or pledge the same, without the writonsent of the Director of Lands had and obtainedainedained, 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.

38. The policy reason behind the requirement for the Director's consent is the need to consider the suitability of tenants of State land. (See Prasad (supra))
    
39. In this case, it is not disputed that the Defendant came onto the land with her husband with the knowledge and consent of the Plaintiff. According to the Plaintiff, it was because her son and daughter in law's lease had expired and the Plaintiff and her husband offered a place for them to live. According to the Defendant, it was for her to look after the Plaintiff and her husband since they were old and sickly, and on the promise that the land would eventually be transferred to her.
    
40. Whilst on the land, the Defendant's husband left her and went to live elsewhere. She continued to occupy the premises with the Plaintiff even after her husband abandoned her. In fact, when the Plaintiff subsequently went to live with her son in Namara, the Defendant continued in occupation on her own, until the Plaintiff's return.
    
41. Did this constitute a dealing with the land in terms of section 13 above? I consider that it does. In Bakar v Talib [2010] FJHC 8; HBA022.2008L (21 January 2010), the Court dealt with an appeal on the application of section 13 of the State Lands Act, concerning a Crown lease of agricultural land. The Court found that the fact that the arrangement involved was a "family" arrangement did not take it outside the purview of section 13, and that what was relevant was the "activity" involved.
    
42. In this case, the evidence in my opinion shows that the arrangement in respect of the Defendant's occupation and continued use of the land, at one point exclusively, amounted to a dealing with the land under section 13 of the State Lands Act, and, being without the prior consent of the Director of Lands, was null and void.
    
43. In Prasad v Chand (supra), the Court stated:
    

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. The Defendant would have committed the criminal offence of trespass on State Land under sections 32 and 40 of the Act. Unlawful occupation of Native land is similarly an offence under section 27 of the Native Lands Trust Act Cap. 134 and other breaches of that Act are caught by section 26. Section 12 of NLTA is couched in similar language to that of section 13 of the State Lands Act. Any gift or promise to subdivide and to grant part of the State Lease to the Defendant would be null and void in these circumstances.

44. Can equity intervene? In Prasad (supra), the Court stated:
    

Section 13 of the State Lands Act would appear to be a complete bar to any equitable estoppel arising in the Defendant's favour.

45. Furthermore, in Turuva v Qauqau [2015] FJHC 853; HBC115.2015 (5 November 2015), Nanayakkara M referred to "Estoppel against a statute" as discussed in Halsburys Laws of England, 4th Edition, Volume 16, at 1515:
    

The doctrine of estoppel cannot be invoked to render valid a transaction which the legislature has, on grounds of general public policy, enacted to be invalid, or to give the court a jurisdiction which is denied to it by statute, or to oust the court's statutory jurisdiction under an enactment which precludes the parties contracting out of its provisions. Where a statute, enacted for the benefit of a section of the public, imposes a duty of a positive kind, the person charged with the performance of the duty cannot be estopped be prevented from exercising his statutory powers.

46. The Master also cited Brown v Heffer (1967) 110 CLR 344, saying that "an interest in equity did not pass because the required consent of the Minister had not been obtained."
    
47. I note that the Defendant, not onlyin her affidavit in opposition but also through her counsel, submitted that the Plaintiff has dealt with the land without the written consent of the Director first had and obtained.
    
48. In light of the authorities cited above, I have come to the conclusion that the mandatory requirements of section 13 of the State Lands Act defeat the Defendant's reliance on promissory estoppel as a defence.
    
49. I find that the Defendant has not shown cause as required of her under section 172 of the Land Transfer Act. I do not consider that she has adduced tangible evidence establishing a right to remain in possession.
    
50. Final Orders:
    
    1. The Defendant is to give up and deliver vacant possession of land and premises on Crown Lease No. 18075, formerly Lots 2 and 10M 2895 and Lot 4 on Plan No. SO 3647 within two months of the date of this judgment;
       
    2. Though costs normally follow the event, it is not always the case, costs being always a matter for the Court's discretion. Given the circumstances of this case, I order for the parties to bear their own costs.
       

S.F. Bull
Acting Master