Stinson Pearce Ltd v Jamnadas Sports (Fiji) Ltd [1992] FJHC 34; Hbc0462j.91s (2 September 1992)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. 462 OF 1991

BETWEEN:

STINSON PEARCE LIMITED
(heretofore called PACIFIC MERCANTILE COMPANY LIMITED)
having its registered office at Motibhai Buildings, Industrial Road, Nadi
Plaintiff

AND

JAMNADAS SPORTS (FIJI) LIMITED
having its registered office at McGowan Building, Thomson Street, Suva
Defendant

Mr. J.G. Singh: For the Plaintiff
Mr. H.K. Nagin: For the Defendant

Dates of Hearing: 14th and 16th April 1992
Date of Judgment: 2nd September 1992

JUDGMENT

I have before me a Summons for Summary Judgment for Possession issued by the Plaintiff on the 27th of November 1991 and a cross Notice of Motion issued by the Defendant on the 9th of April 1992 seeking consolidation of this action with High Court Civil Action No. 328 of 1991.

In the Statement of Claim annexed to the Writ herein which was issued on the 24th of September 1991 the Plaintiff claims possession from the Defendant of two shops and part-of another shop on the ground floor of a building known as McGowan Building on land situate at the corner of Marks, Margaret and Cumming Streets in Suva and described in Certificate of Title No. 8950.

The Plaintiff was the sub-lessor of the ground floor of the McGowan Building and entered into a Sub-Lease Agreement with the Defendant on the 5th of May 1983 for four years of the three shops mentioned above.

Clause 4(3) of the Sub-Lease Agreement allowed the Defendant the right to request in writing three months before the expiration of the sub-lease to renew the term of the sub-lease for another four years from the expiration of the original term if the Defendant had observed all the conditions of the sub-lease until that time.

By letter dated the 2nd of February 1987 the Defendant wrote to the Plaintiff requesting a renewal of the term upon expiration of the original lease and on the 11th of February 1987 the Plaintiff agreed to such renewal from the 1st of July 1987 to the 30th of June 1991, subject to a review of rent on the 1st of July 1987.

On the 4th of March 1991 the Plaintiff through its previous solicitors Messrs G.P. Shankar & Co. sent a letter to the Defendant inter-alia informing the Defendant that it was to give possession of the premises to the Plaintiff on or before the 30th of June 1991.

The Plaintiff also wrote to the Defendant by registered letters dated the 1st of March and 26th of June 1991 requesting the Defendant to vacate the premises by the 30th of June 1991.

The Plaintiff alleges the Defendant has failed to vacate the premises and hence brings the present proceedings seeking immediate vacant possession and damages to be assessed and costs.

The Plaintiff's Summons for Summary Judgment is supported by an affidavit by its Chief Executive, Mahendra Motibhai Patel verifying the above facts. On the 21st of February 1992 the Defendant filed an Affidavit in Reply to that of the Plaintiff by one Amratlal Jamnadas the Managing Director of the Defendant. Mr. Jamnadas alleges, and this is not denied by the Plaintiff, that prior to entering into the sub-lease of the premises the Plaintiff and the Defendant had several discussions and the Defendant stated that it needed to carry out substantial works to the demised premises before it could go into possession.

The Defendant alleges that because of the extensive work which had to be carried out it requested the Plaintiff's then General Manager, Mr. David Ashby to give it an assurance that the Defendant would not be evicted from the premises and that if the Plaintiff's lease for the ground floor was renewed then the Defendant's sub-lease would be similarly renewed.

The Defendant claims that Mr. Ashby gave it that assurance and undertaking after the Defendant took possession of the premises. The Defendant claims that the Plaintiff is now therefore estopped from claiming vacant possession of the shops as its lease has been renewed and claims that the Plaintiff has deliberately failed to disclose this to this Court.

Allegedly as a result of this the Defendant instructed its solicitors to file a High Court Action, (Civil Action No. 328 of 1991) against the Defendant.

The Defendant claims that the issues raised in the present proceedings are the same as those raised in Civil Action No. 328 of 1991.

In Action No. 328 of 1991 the Defendant simply seeks an order that it is entitled to a further tenancy from the Plaintiff of the premises in question and costs of the action.

In reply to the Defendant's affidavit the Plaintiff swore another affidavit on the 4th of March 1992. The Plaintiff admits that its Head-lease dated the 21st of October 1982 was renewed on the 2nd of August 1991 but says that this is of no concern to the Defendant whose lease in any case expired on the 30th of June 1991.

The Plaintiff states that it had never known before or heard of any suggestion by Mr. Ashby that the Defendant had made what it calls such "unlikely arrangements" with Mr. Ashby. The first the Plaintiff ever knew of the Defendant's claim to having made these arrangements was when the Plaintiff received the Defendant's Affidavit in Reply on the 21st of February 1992 and that it was not served with the Defendant's Writ No. 328 of 1991 until the 26th of February 1992.

In argument before me Mr. Singh on behalf of the Plaintiff submitted that the appropriate time for the Defendant to mention any arrangement such as it claims about the right of renewal of its sub-lease would have been when the Plaintiff asked the Defendant to vacate the premises and the Defendant never replied. Further, Mr. Singh argues that in any event the arrangements alleged by the Defendant were, on its own admission, made before the Defendant signed the sub-lease. He points out that none of the alleged assurances are mentioned in the sub-lease which has been signed and sealed by both the Plaintiff and the Defendant. In short the Plaintiff relies on the sub-lease which it says, speaks for itself. He refers me to Halsbury's Laws of England, 4th Ed., Volume 16 para 1571 where the author discusses Estoppel by Deed. The author states that Estoppel by Deed is based on the principle that when a person has entered into a solemn engagement by deed under his hand and seal as to certain facts he will not be permitted to deny any matter which he has so asserted.

In reply on behalf of the Defendant Mr. Nagin reminds me that before the Court can enter Summary Judgment for the Plaintiff it must be satisfied that the Defendant has no defence.

He refers me to a number of cases including a judgment of my own in Civil Action No. 415 of 1991 Kwong Tiy & Company Limited v. Madison Pharmacy Limited delivered on the 31st of January 1991. He also refers me to Civil Action No. 847 of 1985, Honson Limited v. Jamnadas and Civil Appeal No. 13 of 1988 Rajesh Karam Chand v. Weddel Crown Corporation Limited.

The facts in each of these cases are distinguishable from those in the instant case and do not assist me. Mr. Nagin also alleged that a page of the sub-lease had not been included in the documents filed in this Court and this was an important defect in the evidence of the Plaintiff. I remind myself of the remarks of Jessel M.R., Anglo-Italian Bank v. Wells (1878) 38 L.T. 197 at p.201 "When the Judge is satisfied not only that there is no defence but no clearly applicable point to be argued on behalf of the Defendant it is his duty to give judgment for the Plaintiff."

I also note the remarks of Webster J. in Paclantic Financing Company Inc. v. Moscow Narodney Bank Limited (1983) 1 WLR 1063 that the affidavit showing cause against Summary Judgment should be rejected only if it is inherently unreliable because it is self contradictory.

In my judgment the Defendant's affidavit is self-contradictory in as much as it admits that any arrangements made between the Defendant and Mr. David Ashby, if they were made at all, were made before the Defendant signed the sub-lease. I consider this argument compelling and in my view the Defendant has not shown any plausible explanation for this deficiency. As to the Defendant's claim about the page missing from the sub-lease I consider this of no importance as being purely technical.

I therefore enter judgment for the Plaintiff in accordance with its Summons of the 27th of November 1991 and refer the matter to the Chief Registrar for damages to be assessed. I also order the Defendant to pay the Plaintiff's costs of these proceedings.

JOHN E. BYRNE
J U D G E

HBC0462J.91S