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Mal v Sahib [2017] FJHC 84; HBC54.2014 (8 February 2017)

In the High Court of Fiji

At Labasa

Civil Jurisdiction

HBC 54 of 2014

Suruj Mal
Appellant

Sheik Abdul Rasheed Sahib

First Respondent

And
John Morell

Second Respondent

COUNSEL Mr A.Sen for the appellant
Mr K. Ratule for the respondents
Date of hearing: 23^rd January,2017
Dates of Judgment: 8^th February,2017

Judgment

1. The appellant appeals from a decision of the Master granting the first respondent vacant possession in a section 169 application and declining a stay of these proceedings.
   
2. The grounds of appeal read:
   1. THE Master of the High Court erred in law in and in fact in failing to grant stay and in doing so failed to take into consideration relevant matters and in arriving to a decision.
   2. THE Master of the High Court erred in law and in fact in failing to hold that the appellant had shown sufficient course through his affidavits, alternatively, failed to consider the matters deposed in the affidavit of the appellant and thereafter erred in failing to dismiss the summons with costs against the respondent.
   3. THE Master of the High Court erred in law and in fact in failing to hold that the doctrine of proprietary estoppel applied thereby failing to dismiss the summons for vacant possession under Section 172 of Land Transfer Act.
   4. THE Master of the High Court having held that there were disputed facts failed to hold that the appellant had shown course for continued occupation and the real controversy between the parties could only be sufficiently determined in Civil Action No. 2 of 2015.
   5. THAT Master of the High Court erred in holding that the respondent was entitled to vacant possession when the matters deposed in the affidavit of the appellant was not sufficiently considered within the context of the equitable doctrine of proprietary estoppel and adverse possession.
      
3. At the commencement of the hearing, Mr Sen, counsel for the appellant stated that there is no issue that the first respondent, as registered proprietor of the land CT 208823, was entitled to bring proceedings under section 169. The second respondent held his power of attorney.

The first ground of appeal

4. The first ground of appeal takes issue that the Master failed to take into consideration relevant matters in declining the stay of the section 169 proceedings.
   
5. The appellant had filed a writ action against the respondents: Suruj Mal v Sheik Abdul Rasheed Sahib and John Morell, (HBC 02 of 2015) seeking injunctive relief and a stay of the section 169 proceedings. The application was declined. Alfred J following the decisions in Dinesh Jamnadas Lalji & Anor v Hanson Limited,(Civ.Appeal no.22/85)and Muthusami s/o Ram Swamy v Nausori Town Council, (Civ.Appeal no.23/86) held that the existence of other proceedings was not a sufficient cause to resist an application under section 169 of the Act.
   
6. Lord Denning MR in Fidelitas Shipping Co Ltd v. V/O Exportchelb, [1965] 2 All ER 4,9 stated:

The rule then is that, once an issue has been raised and distinctly determined between the parties, then, as a general rule, neither party can be allowed to fight that issue all over again.

7. I agree with the reasoning and decision of the Master that once the issue of the stay of this action has been raised and determined between the same parties, the matter is res judicata and cannot be determined once again.
   
8. In my view, the Master was correct in holding that the appellant was estopped from raising the issue of stay once again. The first ground of appeal fails.
   

The second and fourth ground of appeal

9. The second and fourth grounds urge that the Master having held that there were disputed facts failed to hold that the appellant had showed sufficient cause in his affidavits for continued occupation and the real controversy between the parties could only be “sufficiently determined in Civil Action No. 2 of 2015” .
   
10. The appellant, in his affidavit in opposition filed before the Master had stated that the first respondent had acquired the land fraudulently, as at the time of the transfer, 15^th July,2004, he was not a Fiji citizen. He was a citizen of New Zealand and not entitled for an exemption of stamp duty. The consent of the Minster of Lands was required under section 6(1) of the Land Sales Act before the execution and registration of the transfer.
    
11. The first respondent, in his affidavit in reply stated that he was a Fiji citizen at the time of the transfer in 2004. In support, he attached a copy of his Fiji passport.
    
12. Mr Sen argued that the appellant had shown “sufficient cause” for dismissal of the proceedings, as fraud was alleged. In support of his proposition, he cited the case of Ambika Prasad v Santa Wati and Bissun Deo, (ABU no. 38 of 1995)
    
13. In my view, the Master quite correctly held that the irrefutable evidence of the first respondent established that he was a Fiji citizen at the time of the transfer .
    
14. Moreover, the allegation of fraud in this case was laid to rest in Suruj Mal v Sheik Abdul Rasheed Sahib and John Morell,(supra) where Alfred J found that the appellant was a citizen of Fiji as at the date of the transfer and noted :

At this juncture, Counsel for the Plaintiff, correctly and to his credit, abandoned his arguments relating to the alleged non-resident status of the First Defendant and the requirement of ministerial consent. There was therefore no necessity for me to look at Section 6 of the aforesaid Act.(emphasis added)

15. The facts in Ambika Prasad v Santa Wati and Bissun Deo,(supra) are distinguishable. In that case, there were complicated allegations of fraud, which I will demonstrate for completeness.
    
16. The appellant claimed that he had an equitable interest in the land, as he contributed to half its purchase price together with his grandfather,(the first respondent’s father, now deceased). The appellant alleged that the first respondent had purchased the land from the deceased with knowledge of his equitable interest. The land was transferred in a fraudulent manner to defeat his interests, as the parties were close relatives with competing claims. The respondent disputed any knowledge of the claim. In those circumstances , the FCA held that the issues of equitable interest and fraud could not be resolved by affidavit evidence and ought to go to trial.
    
17. In Jaideep Kishore v Krishna Kumari & Diven Bakram,( HBC 0048/99L) Gates J (as he then was) citing the case of Assets Company Ltd v Mere Roihi,[1905] UKLawRpAC 11; [1905] AC 176 as to what was meant by fraud for the purposes of the Land Transfer Act, said:

The evidence provided by the Defendants does not give rise to sufficient cause to make further investigation. The basic facts are not complicated, and they do not point to the Plaintiff’s involvement in fraudulent activity, such that there is a credible challenge here to the paramountcy of the Plaintiff’s title as the registered proprietor (Sections 39, 40 Land Transfer Act) see Darshan Singh v Puran Singh (unreported) Court of Appeal, Fiji Civil App. No. 22 of 1987; 25^th September 1987. (emphasis added)

18. Finally, I would cite Gould V.P. in Ram Narayan v Moti Ram,( (Civ.Appeal no.16/83) as follows:

..the summary procedure has been provided in the Land Transfer Act and, where the issues involved are straightforward, and particularly where there are no complicated issues of fact, a litigant is entitled to have his application decided in that way.”

19. In my judgment, the second and fourth grounds cannot be sustained.
    
20. The third and fifth grounds argue that the Master erred in in failing to hold that the equitable doctrine of proprietary estoppel and adverse possession applied and thereby failed to dismiss the summons for vacant possession.
    
21. The case for the appellant is that the first respondent’s late father placed him on the land as a “caretaker” on the condition that he will be entitled to occupy the entire piece of land as an agricultural tenant and upon subdivision of the land, he would be given half an acre He contended that he had been in continuous possession of the land for almost thirty years, constructed a substantial dwelling and cultivated the land.
    
22. Mr Sen relied on the case of Australasian Conference Association Ltd v Mere Sela & Ors, [2007] FJHC 62 where it was found the defendants met the requirement of an equitable estoppel.
    
23. In my view, the facts in Australasian Conference Association Ltd v Mere Sela & Ors, are not comparable. In that case, Coventry J stated that when the plaintiffs purchased the land in 1949 “they must have seen that the defendants and their forbearers were in occupation”,(para 11). He stated further: “On the face of the affidavits before me the registered title holders of the land have done nothing sufficient to disabuse them of this stance(until 2004). At para 38, he concluded:

In my judgment, given all the circumstances, there have, as far as the forebears and their descendants are concerned been clear indications from the previous and current registered title holders that they were saying “we know you are on the land, we know how you came on to the land, “we know in what way you regard your presence on the land or we close our eyes to these questions and we are content for you to be there.” That is the position that has prevailed for nearly 70 years. (emphasis added)

24. In the present case, the ownership changed twice from the original owner(deceased) to whom it is alleged the promise was made to his wife and then to the first respondent.
    
25. In Denny v Johnson, [1977] 1NZLR 635 at 639 as cited by Wati J in Peter v Hira Lal and Farsiko,(HBC 40 of 2009) White J stated that the following four conditions must be satisfied before the doctrine of proprietary estoppel applied viz, there must be “an expenditure, a mistaken belief, a conscious silence on the part of the owner of the land, and no bar to the equity”.
26. The first condition is that there must be an expenditure. On that point, I would refer to the following passage from the judgment in Ram Chand v Ram Chandar,(Civil Appeal No. 21/025):

the fact that a tenant carried out improvement without the consent of his or her landlord does not give him a right to continue in the occupation of the land if the landlord is otherwise lawfully entitled to it. On the other hand, if improvements are carried out pursuant to some understanding, however, loose, it may be that in some cases rights will be conferred on tenants at least to purchase the land if a piece can be agreed upon. One cannot lay down hay hard and fast rule. Every case will depend upon its own facts.”

27. On the second condition to be met, viz, “a mistaken belief”, the appellant was required to show that he had a mistaken belief that he had ownership rights to the property.
    
28. In Din v Kumar, [2008]FJHC 187 Singh J said:

..the owner must have known that the defendant was incurring the expenditure in his mistaken belief but has nevertheless stood by or participated in the expenditure without enlightening the defendant .

29. The third requirement of the doctrine of proprietary estoppel is that there must be “conscious silence” on the part of the owner of the property.
    
30. White J in Denny v Jensen, (supra) stated :

“8220;Conscious silence” implies knowledge on the part of the defendant that the plaintiff was incurring the expenditure and in the mistaken belief that there was a contro purchase and that the defe defendant “stood by” without enlightening the plaintiff. In short the plaintiff must establish fraud or unconscionable behavior. The rule, based on the cases cited, is stated in Snell (op cit) 566 as follows:-

“Knowledge of the mistake makes it dishonest for him to remain willfully passive in order afterwards to profit by the mistake he might have prevented. The knowledge must accordingly be proved by ‘strong and cogent evidence.’”

31. It is not in dispute that the dwelling was constructed in the lifetime of the deceased and not after the first respondent became the owner.
    
32. It follows that the requirements of “a mistaken belief” and “conscious silence” are not met.
    
33. The final test is whether there is a bar to equity.
    
34. The appellant has not shown that he had obtained approval for his dwelling from the local authority.
    
35. Snell’s Equity, (29^th Ed) pg 576 provides that “No equity will arise if to enforce the right claimed would contravene some statute,”.(footnotes omitted)
    
36. I conclude that the appellant has failed to prove the requisites of the equitable doctrine of propriety estoppel. His claim for an equitable interest in the land fails, as correctly held by the Master.
    
37. I note that the Master held that the equitable remedy claimed of promissory estoppel contravenes section 59 of the Indemnity, Guarantee and Bailment Act. The section provides that “no action shall be brought upon any contract or sale of lands,.. or any interest in or concerning them;...unless the agreement ..or some memorandum or note..is in writing”.
    
38. In my judgment, that is a misreading of the section and what the doctrine of proprietary estoppel achieves.
    
39. The word “interest” in section 59 applies to a disposition of a legal interest in land. It does not apply to equitable interests. Section 59 does not prevail in a claim in equity.
    
40. Finally, I agree with the finding of the Master that the appellant cannot claim adverse possession, as his occupation was with the consent of the original owner. The first respondent had issued four Notices to quit were to the appellant, which were duly acknowledged.
    
41. The third and fifth grounds are dismissed
    
42. The appeal fails.
    
43. Orders
    • (a) The appeal is declined.
    • (b) The appellant shall pay the first respondent costs in a sum of $1000 summarily assessed.
      

A.L.B. Brito-Mutunayagam

JUDGE

8^th February, 2017