Henning v Tamaibeka [1992] FJHC 42; Hbc0294r.92s (25 September 1992)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 294 OF 1992

Between:

PETER JOHANNES ANTON HENNING
Plaintiff

- and -

WILISONI TAMAIBEKA
Defendant

Mr. S. Matawalu for the Plaintiff
Mr. H.M. Patel for the Defendant

RULING

On the 21st of November 1990 the plaintiff became the registered proprietor of a piece of land at the corner of Pender Street and Marion Street on which was erected a three bedroom iron and timber dwelling house which it is common ground was in need of repair.

The plaintiff however did not move into the house or carry out necessary repairs to it instead he agreed with the defendant that the latter could occupy the house.

The plaintiff claims that they orally agreed that the defendant would take a tenancy of one year over the house from January 1991 at a monthly rental of $550. They also agreed that instead of paying rent the defendant would be required to undertake certain agreed improvements and repairs to the land and house up to a maximum amount of $5,000 which would be 'set-off' against the rental.

The defendant on the other hand whilst accepting that he was to carry out repairs to the house, denied that any term or rental was agreed between them. He also denied that a "ceiling" was fixed between them as to the cost of repairs and inferentially of the precise nature of repairs to be carried out to the premises. In the result the defendant claims to have spent in the vicinity of $15,000 on improvements and repairs to the plaintiff's property.

From the above it is clear that there is a serious dispute as to the terms and conditions of the oral tenancy that was agreed between the parties.

Learned counsel for the plaintiff submits however that even if there was a dispute between the parties that dispute could only relate to the '12 month tenancy' which expired at the end of January 1992 and since then the defendant has held-over or continued on a new monthly tenancy at a newly agreed rental of $300 per month and it is pursuant to this latter tenancy that 'Notice to Quit' dated 27th March 1992 was served on the defendant requiring him to vacate the plaintiff's premises within 20 days ostensibly for non-payment of rent.

As for the defendant's monetary claim for re-imbursement of the $15,000 expended by him in improving the plaintiff's premises, (which is disputed) counsel for the plaintiff submits that the defendant ought to pursue his claim through the normal channels. The existence of such a disputed claim in counsel's view does not and cannot amount to "a right to the possession of the land" in terms of Section 172 of the Land Transfer Act (Cap.131).

Learned counsel for the defendant however sought by reference to the various affidavits filed by the parties to show that the dispute as to the terms and conditions of the defendant's acknowledged occupation of the plaintiff's premises was sufficient in itself for the Court to refuse to deal with the matter summarily.

There was, to adopt the dictum of Gould V.P. in Shyam Lal v. Eric Martin Schultz 18 F.L.R. 152 when he said at p.154, "... complicated questions of fact (which) cannot be adequately investigated and dealt with on a summary proceeding in Chambers."

In Ram Devi v. Satya Nand Sharma and Maya Wati Civil Appeal No. 46 of 1985 however, the Fiji Court of Appeal reaffirmed and refined the above dictum when it said in its judgment at page 5:

"It is true that orders under that section (referring to Section 169 of the Land Transfer Act) will not be made on disputed facts or in complicated law situations - but that must mean bona fide fact dispute arising from the evidence, or legal points which cannot be simply identified."

In this case I cannot agree that there is any relevant "bona fide fact dispute arising from the evidence". Even though the defendant denies that there was any agreement for him to vacate the premises after 12 months, he does accept that "... after the completion of the renovation the plaintiff and me agreed to the payment of ($300) per month as evidenced by the plaintiff's letter to me ..."

That letter which forms an 'annexure' to the defendant's affidavit of 14th July 1992 is incorrectly dated as '6th January 1992' and purports to grant the defendant a further 3 months occupancy of the plaintiff's premises "... at a rental cost of $300 per month ..."

It is common ground that the defendant has not paid any rent to the plaintiff during the entire course of living on the plaintiff's premises and even after the above-mentioned letter.

Section 89(2)(b) of the Property Law Act (Cap.130) reads:

"(2) In the absence of express agreement between the parties, a tenancy of no fixed duration in respect of which the rent is payable weekly, monthly or yearly or for any other recurring period may be terminated by either party giving to the other written notice as follows:

(b) Where the rent is payable for any recurring period of less then one year, notice for at least a period equal to one rent period under the tenancy and expiring at any time, whether at the end of a rent period or not."

In this case the rental was payable monthly and the 'Notice to Quit' which was served on the defendant on the 27th of March, 1992 gave him 30 days to vacate the premises. The notice expired on the 27th of May, 1992 and these present proceedings were instituted on the 2nd of July 1992 (i.e. over 2 months after the notice had expired).

I am satisfied that the plaintiff's 'notice to quit' was a 'Legal notice to quit' in terms of Section 169(c) of the Land Transfer Act (Cap.131) and furthermore that the defendant has not proven to my satisfaction that he has a right to possession of the plaintiff's land as he is obliged to do in terms of Section 172 of the Land Transfer Act (Cap. 131).

Accordingly there will be an order for vacant possession in favour of the plaintiff with costs to be taxed if not agreed.

(D.V. Fatiaki)
JUDGE

At Suva,
25th September, 1992

HBC0294R.92S