IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA
Civil Action No. HBC 47 of 2012

IN THE MATTER of Section 169, 170
And 171 of the Land Transfer Act
Cap 131

BETWEEN :

PARSHU RAM of 10 Covuli Street, Simla, Lautoka, Retired
School Teacher.
Plaintiff

AND:

DAYA NIDHI of 1 Kama Street, Simla, Lautoka.
Defendant

Counsel :  Mr. Rajendra Chaudhary for the plaintiff
Defendant In person 

Date of Hearing : 29 October 2015 
Date of Ruling : 27 January 2016
Before : The Hon. Mr. Justice R. S. S. Sapuvida 

JUDGMENT

1.	This is a dispute between an 84 year old father [plaintiff] and his second son [defendant].

2.	Parshu Ram("Ram") a retired school teacher of Lautoka is the plaintiff and his son Daya Nidhi ("Nidhi") is the defendant.

3.	Ram is a father of eight children, amongst them Nidhi is his second. 

4.	The matter before this court ascends from Ram's originating summons dated 09 March 2012, made pursuant to the section 169 of the Land Transfer Act (Cap 132), seeking an order from this court to show cause as to why an order for immediate vacant possession of the property comprised in Housing Authority Sub Lease No. 16986 known as lot 1 on DP 4299 situated at No. 01, Kama Street, Simla, Lautoka, should not be made against Nidhi.

5.	On 14 August 2012, the then Master of the High Court Hon. Anare Tuilevuka (as he then was) made a ruling relying on Nidhi's affidavit holding that Nidhi has an arguable case to remain in possession against his father Ram. The Master made further orders that the case be tried out by calling oral evidence by the respective parties as it begun by writ of summons and the affidavits filed by the two parties were to be regarded as pleadings.

6.	The court then proceeded to hear the matter on 29 October 2015 and heard evidence from Ram and Nidhi.

7.	Ram gave oral evidence and concluded his case reading in documents marked from PE-1 to PE- 6, followed by his written submissions, and Nidhi followed the same but he did not produce any documentary evidence in proof of his case.

8.	There are certain facts which are not disputed between the two parties.

9.	The subject matter at issue being the property referred in paragraph 4 above belongs to Ram. 

10.	Nidhi does not dispute the ownership of the subject matter.

11.	Nevertheless, Ram proves his paper title of the subject matter by producing the Housing Authority Lease No. 169868 (PE-1).

12.	Ram pays the due assessment rates to the Lautoka City Council for the property in dispute. He produced the bills in proof of the same (PE-4) which is also not disputed by Nidhi. 

13.	Nidhi's contention is that he has the cover of proprietary estoppel over his father Ram to remain in the property.

14.	The onus is on the part of Nidhi to prove the proprietary estoppel.

15.	The scope of the doctrine of proprietary estoppel is well voiced as per Her Ladyship Justice Wati in Jims Enterprises Ltd v Mara [2010] FJHC 35; HBC 139.2009(5 February 2010) as follows:

"The doctrine of proprietary estoppel is applicable where, according to Handbury and Mandsley Modern Equity (11th Ed) pp 736 – 737:

"One party knowingly encourages another to act, or acquiesces in the other's action, to his detriment and in infringement of the first party's rights. He will be unable to complain later about the infringement, and may indeed be required to make good the expectation which he encouraged the other party to rely on. Unlike other estoppels therefore, this doctrine may, in some circumstances, create a claim and an entitlement to positive proprietary rights; in others, it can operate negatively, or can produce a compromise situation appropriate to the particular circumstances".

Snell's Equity (13th Ed), at para 39 – 12 states that:

"Proprietary estoppel is one of the qualifications to the general rule that a person who spends money or improving the property of another has no claim to reimbursement or to any proprietary interest in the property".

Proprietary estoppel, unlike promissory estoppel, is permanent in its effect. It is capable even of conferring a right of action. For it to apply there must exist essential elements or conditions. The Court, in Denny v. Jensen [1977 ] NZLR 635 identified four conditions namely, at p.638.

"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".

Megarry J in In re Vendervell's Trust (No. 2) [1974] CH 269 describes the essential elements this way, at p. 301,

"... the person to be estopped (I shall call him O, to represent the owner of the property in question), must know not merely that the person doing the acts (which I shall call A) was incurring the expenditure in the mistaken belief that A already owned or would obtain a sufficient interest in the property to justify the expenditure, but also that he, O, was entitled to object to the expenditure. Knowing this, O nevertheless stood by without enlightening A. The equity is based on unconscionable behaviour by O; it must be shown by strong and cogent evidence that he knew of A's mistake, and nevertheless dishonestly remained willfully passive in order to profit by the mistake".

In this case, neither the plaintiff nor this Court can argue or find against the fact that the defendants had incurred expenditure in the development of the land at "Naivitavaya". Since the land was first "ceded" in 1967, the defendants have built a village settlement on the land and would have expended resources to build and improve the land. There, no doubt, was also the existence of the defendants' mistaken belief that the land was controlled by Yavusa Matanikorovatu. As it turned out, this was not the case. The land had been sub-divided in 1977 and owned by a succession of Companies ending with the present registered proprietor which acquired it at the end of 2003.

Was there conscious silence on the part of the registered proprietor in allowing the defendants to continue with their occupation while at the same time improving the property? While the plaintiff could be said to be implicated, willful passivity may in fact apply to him through its predecessors in title (Hopgood v. Brown [1955] 1 WLR 213; Jones (A.E.) v. Jone (F.W.) [1977] 1 WLR 438). The evidence before me suggests otherwise." (Emphasis added)

16.	Nidhi was even unable to touch upon any of those very basic elements in his defense when he gave evidence in this hearing though he claimed the rights over the disputed property on the doctrine of proprietary estoppel, let alone the proof of it or and to get the balance of probability towards his case on that basis. 

17.	Therefore, I do not intend to explain here, the breath & width of what proprietary estoppel is, discussing anymore case law authorities in depth pertaining to the theory because, Nidhi has not produced a shred of positive evidence to prove his case based on the theory he relied upon against Ram in this case, and has been unable to establish any form of proprietary estoppel to say that Ram made any type of a promise or undertaking, reserving any right on Nidhi to claim against Ram for Nidhi to live or to stay in the property at issue.

18.	Whatever Nidhi asserts in his original affidavit filed to show cause before the Master, saying that he made pecuniary contributions towards the building up of the disputed house or the hand he extended to his father Ram, have become mere fictitious facts since he was unable to prove any of those in the present trial having given the opportunity by the Master to prove his case with his oral testimony or by calling witnesses. 

19.	Nidhi in his cross-examinations of his father Ram at the hearing, made various allegations against his father Ram, instead of getting any arguable substance with regard to the proprietary estoppel which is being his defense in the instant.

20.	Nidhi asked, while making various personal remarks (of course not scandalous) to his father Ram, many a baseless questions which are totally irrelevant to the matter at issue between parties. The only reason why the court did not prevent him from asking the questions in the former manner from his father Ram, or the reason why court did not interfere with his mode of cross-examinations because, Nidhi appeared in-person for his case. 

21.	Nidhi asked his father Ram that he denied the paternity of Nidhi at his birth for the reason that Nidhi was born black in complexion and so on.

22.	He further asked Ram as to why Nidhi's birth certificate was registered few years later of his birth date. In reply Ram explained to court that it was not only his birth certificate which was registered few years after the due date, but of two other siblings of Nidhi because of a matrimonial dispute between Ram and his wife (Nidhi's mother). 

23.	 These are the type of questions posed to Ram by his son Nidhi at the hearing, rather than trying and get some evidence with regard to his defense in the case. 

24.	However, Ram answering the questions posed by Nidhi, clearly established that the facts mentioned in Nidhi's affidavit filed in support of his argument against Ram, are wild and baseless allegations and later found that those are claims not even backed by Nidhi's own evidence at the hearing. Ram forthrightly and confidently answering the points raised by Nidhi in cross-examinations clearly established his case and facts mentioned in his originating summons to be true with textual proof.

25.	Nidhi has been residing in the property at issue on his father Ram's consent as he had no place to live when he returned from New Zealand in the year 2010. Nidhi had been in New Zealand for five years since he left Fiji in the year 2005. 

26.	Nidhi having come to the property in former manner, thereafter rented the property at issue to some third parties without the permission or will of Ram who is the owner of the property.

27.	Ram has even sent notice to quit the unlawful occupants from the property. (PE- 6).

28.	Nidhi admitted that his father Ram paid $ 8349.36 to the ANZ bank on account of securing a loan obtained by Nidhi over a purchasing of a car by him. Ram produced the document PE- 2 to prove the same. Nidhi in his evidence denied and challenged such a transaction and a document pertaining to a payment of money to the bank by Ram until Ram produced PE-2 and then Nidhi admitted that his father Ram paid $8500.00 to the bank on his behalf. Nidhi while giving evidence in the witness' box, then admitted that he ought to pay it back to his father Ram and vouched that he will repay it after one year from now (while in the box) as he will be receiving a sum of $ 100000.00 from his EPF.

29.	All what Nidhi stated in his affidavit to say that he helped his father Ram's farm, helped the construction and improvement of the house in dispute, helped in the sugar cane farm and so on are utter false when it was revealed the fact that the period Nidhi referred to that effect was in 1967, and whereas it was blatantly revealed that Nidhi was a small child of just 5 years in 1967 during the period which Ram carried a farm. No evidence to accept Nidhi's version that he helped building up the house and as Nidhi said that he even financially supported his father Ram to build the disputed house. 

30.	On the basis of foregoing reasons, I cannot hold that Nidhi has an arguable case against his father Ram. Nidhi has not established any form of evidence to prove the proprietary estoppel though he has discussed the theory in detail in his written submissions supported with several case law authorities relevant to the theory he relied on.

31.	Therefore, I decide that Ram being the lawful owner of the disputed property, is entitled to have the immediate vacant possession of it.

32.	Hence, I make the following orders:

(1)	Immediate possession of the property referred to in paragraph 4 above and in the plaintiff's summons dated 09 March 2012, shall be delivered to the plaintiff.

(2)	The plaintiff shall have the right to the vacant possession of the property and the ejectment of the defendant from the property so referred, after the expiration of 14 days from the date of this judgment.

(3)	The defendant is ordered to pay costs of this litigation to the plaintiff.

(4) Costs to be taxed. 

R.S.S.Sapuvida
Judge
High Court of Fiji

On this 27th day of January 2016 at Lautoka.