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Bakar v Talib [2008] FJMC 11; Civil Case No 56 of 2005 (28 July 2008)

IN THE RESIDENT MAGISTRATES’ COURT
AT BA
IN THE WESTERN DIVISION

CIVIL CASE NO.: 56 OF 2005

BETWEEN:

ABU BAKAR s/o Habib Khan
PLAINTIFF

AND:

ABU TALIB s/o Habib Khan
DEFENDANT

Counsel for the Plaintiff: Dr M S Sahu Khan
Counsel for the Defendant: Mr A. Sudhakar

Dates of Hearing: 31/03/08; 07/04/08;
Dates of Submissions: 14/05/08; 20/05/08
Date of Judgment: 28/07/08

JUDGMENT

BACKGROUND

[1] The plaintiff and defendant are brothers. The plaintiff is the elder brother. Their late father Habib Khan owned two pieces of agricultural land, a Native land and Crown land lease number 5752 which is subject of this litigation.

[2] That the plaintiff and defendant were living with their parents on the Native land until 1973 when the defendant by way of a family arrangement moved to the Crown lease. His father allocated him 5 acres of land to plant sugarcane and sugarcane was harvested and sent to Fiji Sugar Corporation on his father’s cane contract. He was paid his share of the proceeds until about 1996. The defendant then stopped planting sugarcane due to certain disputes between him and the plaintiff.

[3] When the plaintiff moved on to the Crown lease he built his own house. Initially he built a lean-to house and it was burnt down in or about 1987 and he subsequently built a substantial building which has six bedrooms and which is worth about $40,000.00 and is still under construction. I shall address as to how the house was built in more detail later on in my judgment.

NOTICES WHICH LEAD TO THE DEFENDANT STOPPING CULTIVATION OF
SUGARCANE ON 5 ACRES ALLOCATED TO HIM BY HIS LATE FATHER

[4] The first notice was issued by his late father on 28/09/92 which is marked as exhibit P9 and that notice was prepared by Messrs. Sahu Khan and Sahu Khan, Solicitors on behalf of Mr Habib Khan and part of the notice reads as follows and I quote:

"Our client says that you had been allowed to remain on his land in farm number 323 as a family member. However, you are becoming a nuisance of our client.

Accordingly, we have been instructed to demand which he hereby do that you are entitled to remain in our clients property and occupy the residential house but you are not to become a nuisance nor that you trespass on the cane field of our client and you are not to work on our client’s land at all. In the past you have been left to enjoy the family’s property but from now onwards you are only to occupy the residential house.

If you are not to comply with the instructions and demand of our client, our client shall have not option but to take legal proceedings against you."

[5] The plaintiff and defendant’s father Habib Khan died on 12/06/98. He made his last will and testament on 28/09/92 (the same day that he issued the notice referred to in paragraph 4 herein). The last will and testament was also prepared by the office of Messrs. Sahu Khan and Sahu Khan, Solicitors and probate in his estate was granted to the plaintiff on 23/09/98.

[6] The plaintiff as executor and trustee of the estate of Habib Khan gave notice to the defendant on 21/12/98 and the notice only asked the defendant to stop cultivation. The notice reads as follows:

"Our client says that you are cultivating some 5 acres of land belonging to the estate with vegetables and you have been doing this for almost 2 years now. This is contrary to the lease held by our client and could jeopardise the cancellation of the lease.

Accordingly, we have been instructed to demand which we hereby do that you immediately cease cultivation of the land with vegetables as our client intends to cultivate the same with sugarcane and you are to clear the land within 14 days from the date hereof. If you do not clear the land then our client will have no alternative but to clear the land himself and claim the cost of doing so from you."

LITIGATION IN TRIBUNAL AND OTHER COURTS

[7] In 1990 the defendant filed an action in the Agricultural Tribunal and this was struck out on 23/01/92. He again filed an action number 43 of 1992 and this was struck out in April 1992. He subsequently filed action number 14 of 2002 which was heard and a decision was delivered on 05/11/03 by Mr P. R. Lomaloma as the Agricultural Tribunal. In his decision Mr Lomaloma came to the decision that the arrangement between the defendant and his late father "was a family arrangement and common amongst Indian families."

[8] The defendant appealed to the Central Agricultural Tribunal and the appeal was dismissed on 12/11/07.

[9] This action was filed on 17/08/05 by the plaintiff and the plaintiff’s claim can be divided into two parts:

Part A

Paragraphs 1 – 7 relates to unlawful occupation of the 5 acres of the Crown lease for a period of 15 years and loss is claimed at the rate of $4,000.00 per annum totaling a sum of $60,000.00 (15 years x $4,000.00).

Part B

That the defendant has been a trespasser for the last 15 years.

The plaintiff’s claim is for an order that the defendant vacates the Crown lease and also claims damages in the sum of $15,000.00.

DEFENCE AND COUNTER-CLAIM

[10] The defendant claimed that by the conduct of his deceased father and the plaintiff he was led to believe that he could live on the Crown lease permanently and relying on their conduct he has made substantial improvements and therefore claims that they are now estopped from evicting him and he claims for an order for injunction restraining the plaintiff from evicting him from the crown lease and for damages.

ARBITRATION AWARD BY MR RAMESH PRAKASH

[11] In 1996 Mr Ramesh Prakash Solicitor was appointed an arbitrator by the defendant and his late father and he gave an award and his award was considered by the Agricultural Tribunal and it accepted part of the award and awarded payment of $15, 569.03 and rejected parts of the award to grant tenancy in respect of 4 acres.

CONSENT OF THE DIRECTOR OF LAND TO COMMENCE PROCEEDINGS

[12] The plaintiff obtained consent of the Director of Lands to commence this proceedings and the defendant did not do so for his counter-claim.

ISSUE FOR DETERMINATION – WHETHER I SHOULD MAKE AN ORDER FOR VACANT POSSESSION OR WHETHER THE DEFENDANT SHOULD BE ALLOWED TO CONTINUE TO OCCUPY THE DWELLING HOUSE

[13] The defendant lives in a six bedroom family house with his wife and children and on the evidence before me I am satisfied that the house was built by the defendant from his own monies that he derived from his share of cane proceeds and other assistance that he obtained from his friends and relatives and that the plaintiff did not make any contributions towards the construction of the dwelling house.

[14] The plaintiff now wants the house as his Native lease has expired. It expired in year 2001.

[15] The defendant’s position can be summarized as follows:

a. He moved on to the Crown lease in 1973 and has been living there ever since cultivating some 5 acres of land with sugarcane and he stopped cultivating sugarcane after the dispute between him and the plaintiff in 1996. Thereafter the defendant planted vegetable on the 5 acres until he was asked by the plaintiff to stop doing so in December 1998. The defendant still remains in occupation of the dwelling house.

b. The defendant received first notice on 28/09/92 and that notice clearly states that he can "from now onwards "continue to occupy the dwelling house. The notice as I said earlier was issued on the same day that his father made his last will at the office of Messrs. Sahu Khan and Sahu Khan Solicitors.

c. The second notice by the plaintiff as the executor and trustee of the estate of Habib Khan only asked the defendant to refrain from cultivating the land and to refrain from planting vegetables. That notice did not asked the defendant to vacate the dwelling house. The plaintiff in his evidence stated as follows with respect to the house:

"After the defendant left to live on the Crown Land he never came to ask for share in the Native Land.

Q: I put it to you that he never asked for share in the Native Land as your father gave him the share in the Crown Land?

A: Where is it in writing.

I have seen the house built on the Crown Land. The house has been completed and it’s not being built. When the house was being built I never stopped the defendant from building it.

Q: I put it to you that your father gave him a right to live on that land?

A: Yes he gave him a right to stay on the land.

Q: Because he was given the right to stay on the Crown Land he left his share on the Native Lease?

A: Yes.

Q: He built a house on the Crown Land with his own money?

A: No, he did not build from his own money, he built from the cane proceeds. My father used to uplift the cane proceeds from the bank. I used to give half share to the defendant for 5 acres and other 5 acres was paid into bank as we had Crop Lien and mortgage."

d. The Agricultural Tribunal’s findings is that the arrangement between the defendant and his father was a family arrangement and also that the defendant was a licensee. At page 6 of the cyclostyled judgment the Tribunal has stated as follows:

"However as so clearly argued by the counsel for the 1st Respondent, there are many cases where the Tribunals and Courts had refused to grant tenancy to applicants because they were granted a licence to use the land as part of a family arrangement so common amongst the Indian population. A person occupying the land under family arrangement would need to prove that he was indeed a tenant and not a mere licensee. ............ I am not satisfied that the applicant was a tenant of the Respondents because the arrangement were the applicant’s father allowed him to occupy and cultivate a portion of Crown lease number 5752 was a family arrangement common amongst Indian families where there was no intention to create legal relations."

e. This family arrangement commenced in1973 and has continued till today and this has culminated into the defendant building a substantial dwelling house comprising of six bedrooms which is still incomplete.

CLAUSE 2 OF CROWN LEASE

[16] Clause 2 of the Crown Lease states as follows:

"The lessee shall not transfer, sublet, mortgage assign or part with the possession of the whole or any part of the demised land nor shall he enter into a partnership agreement to work the land or any part thereof or a share farming agreement or any other arrangement of a like nature for the working of the demised land or any part thereof, without the written consent of the lessor first had and obtained."

The Agricultural Tribunal held at page 6 of its judgment as follows:

"The evidence clearly shows that the Applicant was given a part of his father’s lease to farm and keep the proceeds to support his family. There is no evidence to suggest the he and his father were not on good terms when the agreement was entered into; no evidence of a written agreement; no evidence that the Applicant had foregone a benefit to come to his father’s farm; and no evidence that the whole arrangement is commercial. I therefore can only conclude that the presumption that the Applicant and his father did not intend to create legal relations by their agreement has not been rebutted."

So in my view clause 2 of the lease document has not been infringed and therefore section 13 of the Crown Lands Act does not apply.

PROMISORY ESTOPPEL

[17] The dealing between the defendant and his late father was not a dealing within section 13 of the Crown Lands Act and therefore the consent of the Director of Lands is not required to file the counter-claim – see Maharaj –v- Chand [Privy Council] [1986] 3 All ER 107 where at page 109 it was stated as follows:

"Before their Lordships two points arise, namely the effect of the section and estoppel apart from the section. The points are linked in as much as the estoppel has to be defined to enable a decision to be reached on whether the section excludes it. There is some advantage, however, in considering the statutory point first, as it is of some general significance in Fiji and other countries where similar provisions are in force and on it along the courts below have differed. For this purpose it is enough to note that the effect of the trial judge’s decision and the express contention advanced for the defendant before their Lordships is not that she has (or should be awarded) any legal or equitable interest in the land on which the house stands. It is simply that the plaintiff is estopped against her from denying that she has his permission or licence to live permanently in the house. The right is not put forward as one of exclusive possession against the plaintiff himself; nor is it claimed that the rights of third parties, such as the plaintiff’s lessor and mortgagee, are affected."

At page 110 it was stated as follows:

"In terms Section 12 is directed against alienating or dealing with the land without the consent of the board. Manifestly the section is intended to ensure that the board’s power of control and the beneficial interests of the Fijian owners are not to be prejudiced by unauthorized transactions. Neither the terms nor the spirit of the section are violated by an estoppel or equity operating solely inter partes.

According to the plaintiff’s evidence, he left the property in 1980, terminating his relationship with the defendant and telling her to stay there without mentioning any time limit. But by written notice in March 1981 he required her to quit. The Court of Appeal thought that when he left he conferred a licence on her, and that they were bound by Chalmers –v- Pardoe [1963] 3All ER 552, [1963] 1 WLR 677 to hold that such licence was caught by the section."

Later at page 110 it was stated as follows:

Counsel for the plaintiff properly drew the attention of their Lordships to Kulamma –v-Manadan [1968] AC 1062, a case apparently not cited to the Court of Appeal. Had the court enjoyed the advantage of considering that case, the result there might will have been different. Kulamma’s case concerned a share farming agreement which was claimed to be void under Section 12. In a judgment delivered by Lord Wilberforce the Judicial Committee distinguished Chalmer’s –v- Pardoe, holding that merely because an agreement can in certain of its aspects be described as a licence, it is not necessarily to be described as a dealing with the land; rather the decision has to be based on an analysis of the particular agreement. Lord Wilberforce analyzed the agreement there in issue as in its whole effect ‘one of a purely contractual and personal character, which, even in the most general sense, could not be said to amount to a dealing with the land.’

The present case likewise is concerned with a purely personal right. In the opinion of their Lordships such a right is outside the purview of Section 12. The context of the section and the purpose of the Act contain nothing to suggest that the words of the section bear other than their natural and ordinary meaning. In the natural and ordinary sense a promissory or equitable estoppel such as is set up in this case would not be described as a dealing with land."

At page 112 it was stated as follows:

"It is possible that, but for Section 12 of the Native Land Trust Act, the defendant here could have made out an entitlement to an equitable interest in the land on the principles just mentioned. In the face of the section, however, no such interest is contended for and none was found at first instance. The finding and the contention are more limited and justifiably so. No matter whether or not the facts of a given case go far enough to establish an equitable interest in land, they may satisfy the requirements for a promissory estoppel. The doctrine of promissory estoppel is not firstly established, although its frontiers are still being worked out. For present purposes it is enough to refer to the account in Spencer Bower and Turner on Estoppel by Representation (3rd edn, 1977) ch 14.

The present case fairly satisfies the requirements. On Rooney J’s findings, at the time of the acquisition of the land and the building of the house the plaintiff represented to the defendant that it would be a permanent home for her and her children. Indeed, the representation was that she would be treated as living there as his wife. In reasonable reliance on the representation she acted to her detriment by giving up the flat. Moreover, she supported the application to the housing authority, she used her earnings to pay for household needs, and she looked after her de facto husband and the children as wife and mother. A sufficient relationship had previously existed between the parties. It is not possible to restore her to her former position.

In these circumstances it would plainly be inequitable for the plaintiff to evict her. It is right to hold that as against him she has in effect permission to reside permanently in the house, on the basis that the children may be with her for as long as they need a home."

CONCLUSION

[18] I am satisfied that both the plaintiff and his late father by their conducts gave the defendant reasons to believe that he, his wife and children had a licence to remain in their dwelling house permanently and as a result the defendant has made a substantial improvement and has acted to his detriment. The defendant has acquired a personal right against his late father and the plaintiff and therefore the defendant, his wife and children are entitled to remain in their dwelling house permanently and I do so order. The plaintiff’s claim is therefore dismissed.

CLAIM BY THE DEFENDANT

[19] The Agricultural Tribunal has already made an award in favour of the defendant in the sum of $15,569.03 and I do not wish to make any further award and with respect to enforcement of the Agricultural Tribunal’s award I draw the attention of the defendant’s counsel to Section 52 of the Agricultural Landlord and Tenant Act Cap 270 which states as to how an award of the Agricultural Tribunal can be enforced.

COSTS

[20] I order that the plaintiff shall pay the defendant’s costs of this action to be taxed if not agreed.

[Mohammed S. Khan]
Resident Magistrate

21st July, 2008