Singh v N'yuert [1993] FJHC 108; Hbc0044j.93s (22 November 1993)

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

ACTION NO. 44 OF 1993

BETWEEN:

MAHEND PRATAP SINGH
(f/n Dasrath Singh)
of Suva, Fiji, Financial Controller
Plaintiff

AND

JACQUELINE EHNY N'YUERT
of 50 Beach
Road, Suva Point, Suva, French Teacher
Defendant

W. Morgan: For the Plaintiff
M.B. Patel: For the Defendant

Date of Hearing: 22nd July 1993
Date of Judgment: 22nd November 1993

JUDGMENT

In this case the Plaintiff claims vacant possession of land situate at 50 Beach Road, Suva Point, Fiji being the land comprised in Crown Lease No.2872 known as Lot 22 Muanivatu Subdivision. The Plaintiff is the registered proprietor of the land in question and claims that the Defendant has been and is presently trespassing on the property despite notice from the Plaintiff to vacate and deliver up vacant possession to him.

On the 13th of May 1992 the Plaintiff instructed his former solicitors Messrs Sherani & Co. to issue a Certificate of Notice to Quit on the Defendant. This is admitted by the Defendant who claims that she has an option to purchase the property. The Defendant claims in an affidavit sworn on the 29th of March 1993 that she has been a tenant of the Plaintiff since 1988 at an agreed monthly rental of $350.00.

She states that at the time she entered into the rental agreement with the Plaintiff the Plaintiff agreed to carry out certain repairs and maintenance and further that in the event the Plaintiff wished to sell the property the Defendant would have the first option to buy the same. I mention here, and will refer to it later, that there is no document evidencing any option to purchase by the Defendant.

The Defendant claims that the Plaintiff failed to repair and maintain the premises as he agreed and that consequently the Defendant had the repairs carried out at a cost of $5,802.00. She says she did this for two reasons, first the need to make the premises more liveable and secondly because the Plaintiff suggested she do so and the Defendant understood that she would then be given first option to buy the premises.

She states that the Plaintiff ignored her many requests to re-imburse her in the sum of $5,802.00 and she therefore told the Plaintiff that she would withhold the monthly rental payments until such time as she was fully re-imbursed. She proceeded to do this.

The Plaintiff denies that he agreed to carry out certain repairs and maintenance to the property at the time the Defendant took possession. He also expressly denies that he agreed that in the event that he wished to sell the premises he would grant a first option to purchase to the Defendant.

He denies that he authorised the Defendant to carry out any repairs or that he agreed that the purported repair costs could be deducted from rental due by the Defendant. The Plaintiff admitted he distrained for arrears of rent at the end of December 1991 following a letter from the Defendant on the 18th of December 1991 stating that she had withheld the rent and that she would re-commence the monthly rental payments as from 1st January 1992. She also stated that she remained ready to purchase the premises.

The Plaintiff's response to this letter was to instruct his solicitors to proceed with recovery action and to issue a Notice to Quit. The Defendant also claims that in view of the conduct, representation and promise by the Plaintiff causing her to act to her prejudice and detriment in spending money on repairs to the property the Plaintiff is estopped from proceeding any further in this matter.

On the 22nd of July 1993 I took oral submissions by counsel for the parties and adjourned the matter until the 28th of July to enable them to obtain instructions as to a possible time being given to the Defendant to vacate the premises. It was agreed that if I was not informed that the differences of the parties had been resolved by the 11th of August I would then deliver my ruling. I have heard nothing further from the parties which would prevent me now from delivering this judgment.

I shall refer briefly to the submissions of counsel. The first submission by Mr. Morgan is that although the Plaintiff states he never authorised the Defendant to effect any repairs on the property even so she has been more than adequately compensated by not paying rent. Mr. Morgan mentions the fact that the Defendant agrees she withheld rent for seventeen months which exceeds the amount she claims to have paid.

As to the claim by the Defendant that she has an option to purchase the premises, counsel points out that there is no written evidence of any such option. He points out that even if there were some form of option no evidence has been given as to its duration or its amount or how that amount (i.e. the purchase price) is to be ascertained. In short counsel submits that the option alleged by the Defendant is too vague and that I should decline to hold that the Plaintiff ever gave the Defendant an option to purchase the property.

In any event Mr. Morgan argues that no consent has been obtained to the alleged lease of the Defendant under Section 13 of the Crown Lands Act, Cap.132. Section 13(1) reads so far as relevant:

"13(1) Whenever in any lease under this Act there has been inserted the following clause:-

'This lease is a protected lease under the provisions of the Crown Lands Act'

(hereinafter called a protected lease) it shall not be lawful for the lessee thereof to alienate or deal with the land comprised in the lease or any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever, nor to mortgage, charge or pledge the same, without the written consent of the Director of Lands first had and obtained, .........."

The lease in question contains this clause:

"And provided further and it is expressly declared that this lease is a Protected Lease under the provisions of the Crown Lands Ordinance, 1945."

In answer to these submissions counsel for the Defendant argues that it would be wrong for the Court to decide this matter summarily. He states that there are facts in dispute and issues raised as to whether any option to purchase was ever given to the Defendant. Counsel also says that any option to purchase would not of itself need the consent of the Director of Lands and argues that the option changes into a bi-lateral contract upon the exercise thereof and that only then the consent of the Director will be required. No authority has been cited to support this argument and I cannot accept it. In my view the whole occupation of the Defendant is unlawful because no consent to it has been obtained from the Director of Lands which the Defendant through her counsel thus admits. During argument I remarked to counsel for the Defendant that if the Defendant had not paid any rent as she admits, in law she would be at best a tenant at will. I see no reason to resile from that statement.

As to whether the Defendant had an option to purchase I accept the submissions of the Plaintiff. In Murray v. Scott (1976) 1 NZLR 643 at p.655 Cooke J described as an academic riddle the juridical nature of an option. He indicated that the most commonly accepted theory in New Zealand is that it comprises an offer to sell coupled with a contract not to revoke the offer which view seems to have been accepted in United Scientific Holdings Ltd v. Burnley Borough Council (1978) A.C. 904.

The other view expressed in some cases is that an option to purchase is a conditional contract of sale. This view was taken by Gibbs J. in his judgment in the High Court of Australia in Laybutt v. Amoco Australia Pty Ltd [1974] HCA 49; (1974) 48 ALJR 492 at 497-499.

It has also been said however that any difference between the two is in form only and not in legal operation.

Whatever be the legal position as to the nature of an option to purchase one thing is certain, that no particular form of words is necessary in order to exercise an option effectively. As is said in Voumard's The Sale of Land, Third Edition at pp11-12 all that is required is that the document relied on as constituting the exercise should show that the holder of the option has made a clear and unequivocal election to acquire the property upon the terms specified in the option.

To support this statement the author cites a number of cases including Ballas v. Theophilos [1958] VicRp 91; (1958) V.R. 576 at p.581 affirmed on appeal in the High Court of Australia in [1957] HCA 90; 98 C.L.R. 193 at pp. 196, 205.

It is therefore clear from these authorities that there must be tangible evidence, generally in writing, of the terms of any option to purchase including the monetary value thereof, or, if this is not stated, how it is to be ascertained and the duration of the option stating the period for which it is to be open and the manner in which it is to be exercised.

The material in this case fails to satisfy me that the Defendant has any option to purchase the premises as she alleges and furthermore, since the consent of the Director of Lands has not been obtained to her occupation, she is occupying those premises illegally. I therefore order that the Defendant give up immediate vacant possession of the land situate at 50 Beach Road, Suva Point, Fiji of the land described in the Summons herein dated 8th February 1993 but that there be a stay of execution of one month on this order. I also order the Defendant to pay the Plaintiff's costs of these proceedings.

JOHN E. BRYNE
J U D G E

HBC0044J.93S