• In this case the Privy Council held that a right under estoppel was non-proprietary, and therefore did not bind third parties.

Facts of the case:

  • This Privy Council case concerned a situation in Fiji. In Fiji, s12 of the Native Land Trust Act states that the government’s consent is required when ‘dealing with’ land owned by the government.
  • In the present case, the C had a sublease from the Fiji government with respect to a piece of land. C then built a house on that land, and assured D that she could live in the house permanently with her children.
  • In reliance on the assurance made to her regarding the house by C, D left her flat and moved into the house built by C with her children.
  • Some time later, following a breakdown in the relationship between C and D, C sought possession of the house from D.
  • D refused, and argued that the doctrine of estoppel enabled her to remain at the property.

Issues in Maharaj v Chand [1986]:

  • The issue of course was whether C was estopped from requiring possession from D. This was contentious, because it was uncertain whether C could have granted the right in the house to D in the first place, as the land was owned by the Fiji government and as such the purported grant may have been unlawful and thus void under s12 of the Native Land Trust Act as the government’s consent was not acquired over the grant.

First instance court and the Fiji Court of Appeal:

  • At first instance the court held that there was estoppel but, the Fiji Court of Appeal disagreed, and stated there was no estoppel, because it was unlawful for C to grant D a licence to occupy the land under s12 Native Land Trust Act.

Privy Council (PC) held:

  • The case went to the PC which held that C had indeed been estopped from seeking possession of the house.
  • Their reasoning was that the licence granted by C to D did not amount to ‘dealing with the land’, because estoppel is a personal right, and thus did not confer any proprietary rights to D. Therefore, it was not in contravention of the Act in question and the licence granted was lawful.

Sir Robin Cooke in the Privy Council:

  • [446 H] “As has already been noted, it is a personal right not amounting to a property interest diminishing the rights of the plaintiff’s lessor and mortgagee. It has not been contended for the defendant that the plaintiff is under any obligation to her to continue to pay the rent or the mortgage interest, H The appeal raises no question regarding the plaintiff’s ability to assign the sublease. In any event that is subject to the control of the Native Land Trust Board under section 12.”