Fong v Chand [1991] FJHC 58; Hbc0283d.91s (12 November 1991)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 283 OF 1991

Between:

CHEEWAI FONG
Plaintiff/ Applicant

- and -

KAMLESH CHAND
s/o Shiu Dutt
Defendant

Mr. K. Bulewa for the Plaintiff/Applicant
Mr. V. Parmanandam for the Defendant

RULING

The is an application for vacant possession under the provisions of Section 169(c) of the Land Transfer Act Cap. 131 which provides inter alia:

"169. The following persons may summon any person in possession of land to appear before a judge in chambers to show cause why the person summoned should not give up possession to the applicant:-

(c) a lessor against a lessee or tenant where a legal notice to quit has been given or the term of the lease has expired. "

It is worth noting at this stage that the terms "lessor" and "lessee" are defined in the Act so as to include within their ambit a 'sub-lessor' and 'sub-lessee'.

In his affidavit the applicant seeks to establish his locus in bringing the application in the following ways:

Firstly, as a "lessor" and secondly, on the ground that the term of the lease agreement that existed between him and the defendant had "... expired without renewal".

As to the first, it is apparent from the lease document under which the applicant claims title that he himself is a "lessee" of the disputed premises and that he is more accurately described as a 'sub-lessor' of the premises to the defendant who in turn is more accurately described as a 'sub-lessee'. But that is a mere technicality given the all-encompassing nature of the definition of "lessor".

Of more relevance however is the second requirement of the 1st limb of the paragraph set out above namely:

"... where a legal notice to quit has been given ...". This is evidenced, the applicant claims, by a letter dated the 29th April, 1991 from the applicant's solicitors to the defendant requiring him to "... vacate the (said) premises by 31 May, 1991".

It is common ground that in spite of the letter the defendant did not vacate the premises and continued to occupy it until on or about the 1st of June 1991 when he was "locked-out".

Thereafter each party sought injunctive relief against the other and on the 13th of June 1991 this Court granted the defendant's application "... until further order".

In doing so the court broadly considered the competing claims to occupy the premises, in particular, the question of the applicant's notice to quit, the unconditional acceptance of the June rent for the premises by the head-lessor's authorised agent and the basis and nature of the equitable interest asserted by the defendant.

In the result this Court was satisfied that the preliminary evidence and papers submitted to it:

"... collectively raised serious issues to be tried by the Court for which oral evidence must inevitably be heard if the issues are to be resolved".

This finding alone would be sufficient for the Court to dismiss the applicant's present summons but in addition learned counsel for the defendant argues that the applicant's evidence before the Court at the time of hearing this application (on the 2nd of August 1991) did not raise a threshold locus.

If I may say so there is some merit in this latter submission in that at the time of first filing this application (on the 7th of June 1991) the applicant was undeniably the lessee of the disputed premises under a registered lease dated the 18th of July 1988 "... for a term of 3 years beginning on the 1st of July 1988".

In the absence of any admissible evidence of a renewal of the applicant's lease, it would have expired on the 1st of July 1991 (i.e. a month before the actual hearing of this application) and although this was foreshadowed in the Court's earlier ruling on the injunction matter, the applicant has not seen fit to plug that evidential lacuna.

Needless to say in the absence of a valid exercise of the applicant's option to renew and/or a valid renewal of the lease, the applicant must be considered to have failed to establish the statutory minimum required by Section 169(c) that he is "a lessor" entitled to issue a summons for vacant possession.

The applicant's second ground is based on the 2nd limb of Section 169(c) which envisages the situation where "... the term of the lease has expired". Here the applicant relies on a document dated the 11th of January 1990 entitled: "CONTRACT BETWEEN KAMLESH CHAND AND CHEEWAI FONG" which purports to be an agreement by the applicant to lease the premises to the defendant "... for a period of one (1 year) commencing from the 1st of January 1990 ... ".

It should be noted that although learned counsel for the applicant argues that the term of the agreement expired without renewal, clause 9 of the agreement provides that:

"A further term of 1 year will be considered after completion of the term."

Furthermore it is common ground that the defendant was permitted by the applicant to remain on the premises for 4 months and paid rent on a '... month to month basis' even after the so-called 'lease' had expired.

The circumstances and terms under which the defendant continued to remain on the premises is of critical importance in determining this case and, in the present state of the pleadings, remains unclear and controversial but in any event is not based on any written document.

It is impossible to determine the various issues raised by the conflicting versions at this stage nor would it be appropriate given the nature of those conflicts to resolve them purely on affidavit evidence.

This court is of course mindful of the fact that the defendant presently occupies and conducts a business on the disputed premises without paying anything to the defendant for the use of whose equipment he continues to fully enjoy.

In the exercise therefore of the court's discretion under Section 172 of the Land Transfer Act and without prejudice to the final determination of the proceedings the application is dismissed on the following conditions:

"(1) that the defendant pay into court within 21 days the sum of $7,000 being for the use of the applicant's appliances, furniture and utensils on the premises for the past 4 months at the rate of $1,750 per month and;

(2) upon the defendant continuing thereafter to pay the same into court at that rate at the end of each month until final determination of all proceedings relating to the disputed premises."

It is further ordered that all monies paid into court may be released to the applicant as and when it is paid.

Needless to say I do not base my ruling principally on the 'locus' ground rather I am satisfied from the defendant's affidavit and annexures that he has adequately discharged the burden of showing cause why he should not give up possession of the disputed premises at this stage to the applicant.

Subject to the defendant complying with the above conditions the application is dismissed with costs to the defendant.

(D.V. Fatiaki)
JUDGE

At Suva,
12th November, 1991.

HBC0283D.91S