Henning v Tamaibeka [1993] FJHC 10; Hbc0294d.92s (2 February 1993)

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 25th of September, 1992 this Court granted to the plaintiff an order for vacant possession of a property owned by the plaintiff situated at the corner of Marion and Pender Streets and occupied by the defendant since January 1991.

On the 28th of September a sealed copy of the Court's order was personally served on the defendant. The following day the defendant lodged a Notice of Appeal against the order and sought a stay of execution. The relevant Notice of Appeal is not before this Court nor was it annexed to the defendant's affidavit in support of his stay application as it should have been but in any event the defendant raises 3 grounds in his founding affidavit as follows:

"(a) The Defendant is not a trespasser on the premises.

(b) The Plaintiff owed the Defendant a sum of approximately $15,000 (FIFTEEN THOUSAND DOLLARS) which the plaintiff had not paid. And the plaintiff has been unjustly enriched by that amount.

(c) The Plaintiff having owed the above specified sum to the Defendant and having represented to the Defendant that he could occupy the house once he had carried out renovation work (which the Defendant had done) is estopped from treating the Defendant as a trespasser and from evicting him from the premises until the sum owed to the Defendant is set-off by the Plaintiff from his occupation of the premises."

The above "grounds" if I may say so are not proper grounds as such and indeed appear more like conclusions In any event the first cannot be sustained in the light of the Court's existing order for vacant possession and the second and third were neither supported by the evidence put before the Court at the 'Section 169 proceedings' or were rejected by the Court as not sufficient to establish "a right to possession of the land".

The defendant also filed a second affidavit in support of this application annexing a large number of invoices evidencing the purchase of hardware materials to the total value of slightly over $6,000. Two things are immediately evident, firstly, that the invoices were available to the defendant at the "Section 169 proceeding" but for reasons not entirely clear were not produced and secondly, they fall well-short of the $15,000 which the defendant claims he spent on renovating the plaintiff's premises.

Then learned counsel for the defendant referred to a paragraph at p.2 in the earlier ruling of this Court in the 'Section 169 proceedings' where after setting out the respective positions of the parties as to the oral tenancy I observed:

"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."

On that observation learned counsel submitted with reference to well-known dicta of the Court of Appeal that this Court ought to have refused to deal with the matter summarily.

With all due respect to learned counsel for the defendant the submission ignores the remaining 3 pages of the Court's ruling in the matter and more particularly where this Court at page 4 of its ruling dealt with the acknowledged tenancy agreement for 3 months pertaining after the first 12 months of the defendants occupation upon which earlier period there was undoubtedly "a serious dispute".

It was on the basis however of the later more certain written tenancy and the non-payment of any rent by the defendant coupled with the issuance of the plaintiff's legal 'notice to quit' that the Court found for the plaintiff.

In other words whilst the Court accepted that for the original 12 months oral tenancy there was a serious dispute, for the latter 3 months written tenancy there was no "bona fide dispute".

Be that as it may there is no doubting that this Court has an unfettered discretion as to whether or not to grant a stay of execution of its orders pending an appeal and in doing so the Court is necessarily involved in balancing the competing interests of the plaintiff on the one hand, in obtaining vacant possession of his property and the defendant on the other, in losing possession of the premises. (NOT I might add losing the money that he claims was expended on the plaintiff's property and which could have been the subject matter of a separate claim.)

Be that as it may this Court has clearly ruled:

"... that the defendant has not proven to my satisfaction that he has a right to possession of the plaintiff's land."

There is no suggestion that the defendant had a greater interest in the property than that of a tenant such as might be said of a purchaser in possession under a written agreement.

Indeed if I may say so the very vagueness of the defendant's claim to a right of occupation and the somewhat 'open-ended' nature of its 'terms' prompted learned counsel for the plaintiff to state that theoretically the defendant could occupy the plaintiff's house 'in perpetuity' so long as he continued to expend monies on the plaintiff's house.

In all the circumstances balancing as best I can the various competing factors I would exercise my discretion by refusing the defendant's application which is accordingly dismissed with costs to be taxed if not agreed.

(D.V. Fatiaki)
JUDGE

At Suva,
2nd February, 1993.

HBC0294D.92S