Gulam Mohammed Properties Ltd v Patel [1994] FJHC 66; Hbc0115j.94s (22 June 1994)

IN THE HIGH COURT OF FIJI
(AT SUVA)
EVICTION PROCEEDINGS

ACTION NO. HBC0115 OF 1994

IN THE MATTER of an Application
under section 169 of Part XXIV of the Land Transfer Act 1971
Cap 131 for an Order for Vacant
Possession

BETWEEN:

GULAM MOHAMMED PROPERTIES LIMITED
a limited liability company having its
registered office at 9¢ miles Nasinu
Plaintiff

AND

SURESH PATEL
(f/n Thakorlal Patel) of
Yasawa Street, Lautoka
Defendant

M.K. Narsey: For the Plaintiff
M.B. Patel: For the Defendant

Dates of Hearing: 15th April, 6th, 20th and 27th May 1994
Date of Judgment: 22nd June 1994

JUDGMENT

By Originating Summons dated 8th of March 1994 the Plaintiff applies for an Order under Section 169 of Part XXIV of the Land Transfer Act 1991 Cap. 131 that the Defendant should give immediate vacant possession to the Plaintiff of land situate at 142 Ratu Mara Road, Suva comprised in part of Crown Lease 1609, Lot 16, Section 9 and in part of Crown Lease 1615, Lot 17, Section 9 of which the Plaintiff is the registered proprietor.

The parties have filed affidavits from which I shall state the relevant history and allegations. I have also received comprehensive written submissions on the law from their solicitors.

The affidavit in support of the Summons by the Plaintiff was sworn on the 4th of March 1994 by a Director of the Plaintiff, Mohammed Ramzan. Mr. Ramzan deposes that the Plaintiff is the last registered proprietor of the land described in the Summons and he exhibits to his affidavit photocopies of Crown Lease No. 1609 and 1615 which appear to have been originally issued on the 24th of January and 13th of February 1948 and are stated to run for a period of 75 years commencing on the 1st of January 1946. Each lease is declared to be a Protected Lease under the provisions of the Crown Lease Ordinance, 1945.

By endorsements on the back of each lease transfers of the relevant land were registered to Gulam Mohammed Properties Limited on the 10th of April and 21st of July 1987 respectively.

On the 15th of March 1992 the Defendant became a tenant of Gulam Mohammed Properties Limited of the two properties concerned under an Agreement dated 15th of March 1992 for a period of two years commencing on the 1st of March 1992. The tenancy thus ran until 28th of February 1994 unless the tenant exercised the right of renewal contained in Clause 6 of the Agreement.

So far as relevant Clause 6 reads as follows:

"If the tenant shall give to the landlord three (3) calendar months notice in writing prior to the expiration of the period hereof of the tenant's desire to renew a further term of two (2) years from the date of expiration of the said period and if there shall not at the time of notice be any existing breach or non-observance of any of the agreements, covenants or conditions herein contained and on the part of the tenant to be observed................. the landlord shall grant to the tenant a renewal of this Agreement for a further period of two (2) years from the date of expiry of the period hereby created on the same terms as are contained in these presents..................."

Clause 7 states that the Agreement is subject to the consent of the Director of Lands.

The Plaintiff claims, and the Defendant denies, that the Defendant failed to exercise his right of renewal under Clause 6 and that consequently the Plaintiff through its solicitors gave notice to the Defendant of its intention not to renew the tenancy agreement and requiring the Defendant to vacate the land upon the expiry of the Agreement.

A Notice to Quit being a letter dated 21st January 1994 from the Plaintiff's solicitors was addressed to the Defendant and sent by the Plaintiff's solicitors to Lautoka to the Defendant by PNT Express Courier Limited and was allegedly served on either the Defendant or his agent on 21st January 1994. A photocopy Tax Invoice No. 37782 is annexed to the Plaintiff's affidavit and according to the description of contents on the invoice there was delivery to the Defendant of one envelope containing documents. The nature of the documents is not stated on the invoice.

The Plaintiff deposes that the receipt of its letter dated 21st of January 1994 by the Defendant was acknowledged by the solicitors for the Defendant in their letter dated 27th January 1994 to the Plaintiff's solicitors. I set out the relevant parts of the letter because they concern the issues which have been argued before me by the parties:

"27th January, 1994

Our Ref: MBP/A23/93

G P Lala & Associates,

Solicitors,

S U V A.

Dear Sirs,

RE: GULAM MOHAMMED PROPERTIES LIMITED AND SURESH PATEL

We act for Suresh Patel the lawful lessee of the subject property who has handed to us your letter dated 21st January, 1994 purporting to terminate the tenancy created pursuant to the lease Agreement dated 15th March, 1992.

Your notice is irregular unlawful null and void and of no legal effect upon grounds interalia:

1.0 the service of the same was not effected on our client personally and according to legal requirement. Accordingly service of the notice is denied.

2.0 a valid and effectual exercise of our client's right to renewal was effected by letter dated 16th November, 1993 pursuant to clause 6 of the lease Agreement dated 15th March, 1992.

3.0 that the telephone discussion of 12th January, 1993 between our client and Mr. Ramzan a director of the lessor re-confirmed our stated position.

Yours faithfully

PATEL SHARMA & ASSOCIATES

Per:....................."

According to Mohammed Ramzan he also served a copy of the letter dated 21st January 1994 on Dinesh Patel of Automart who he believes is the Defendant's brother and in-charge of the Defendant's business in Suva on the land situate at 142 Ratu Mara Road, Suva in the afternoon of the 21st of January 1994.

Mr. Ramzan further deposes that a few days after the Plaintiff's solicitors had sent the letter the Defendant telephoned Mr. Ramzan to discuss the renewal of the terms of the Agreement but Mr. Ramzan advised the Defendant to discuss the matter with the Plaintiff's solicitors.

The Plaintiff claims that on the 23rd of February 1994 its solicitors received a letter from the Defendant's solicitors dated 17th of February 1994 referring to a letter the Plaintiff's solicitors were supposed to have received dated 27th of January 1994. This letter refers to instructions to the Defendant to seek consensus on a rental figure for the renewal period of the lease.

By letter dated 23rd February 1994 the Plaintiff's solicitors replied that they had never received any letter dated 27th of January 1994 from the solicitors for the Defendant.

The letter which was headed "without prejudice" also claimed that the Plaintiff's solicitors had given the Defendant a valid Notice to Quit and warned of eviction proceedings unless the Defendant vacated the two properties.

The Defendant has failed to give vacant possession of the land and the Plaintiff has therefore issued the present Summons. I am satisfied that the Director of Lands & Survey has given his consent to this action being brought. Two copy letters from the Department of Lands & Survey dated the 8th and 9th of February 1994, confirming this are exhibited to the Plaintiff's affidavit.

In an affidavit sworn on the 29th of April 1994 the Defendant disputes various allegations made by the Plaintiff and particularly the Plaintiff's right to summary possession. He admits that he is a party to the Agreement dated 15th March 1992 but denies his liability to be evicted for a number of reasons. First he says that he exercised his right to renew the tenancy agreement and relies on a letter dated 16th November 1993 which he says was duly posted to the Plaintiff at the address stated thereon which was the address initially furnished to him. Omitting formal parts the letter reads:

"RE: RENEWAL NOTICE

I, Suresh Patel hereby exercise my right of renewal under clause 6 of the lease Agreement dated 15th March, 1992. Until such time as rental is re-assessed I shall continue to pay the present rental."

I observe immediately here that the Defendant does not state the date on which or the place where he posted this letter. I presume that if it were posted at all it was by ordinary postage and not by registered postage because, if it were the latter, I would expect the Defendant to have annexed to his affidavit a photocopy of the Certificate of Registered Mail of the letter. No such copy is exhibited.

The Defendant also denies being served with the Notice to Quit herein. He refers to the letter dated 27th January 1994 of his solicitors who had inter alia disputed the validity of the Notice to Quit.

The Defendant claims to have a proper counter-claim against the Plaintiff for a declaration of tenancy for the renewed period of two years.

There are thus two preliminary issues to be decided before the Court can rule as to whether the Plaintiff is entitled to summary possession of the land in question. The first is the validity of the service of the Notice to Quit and second, whether or not the Defendant ever gave notice of his proposed renewal of the lease to the Plaintiff.

The Land Transfer Act does not stipulate any mode of service of a Notice to Quit. In fact no such document or term is mentioned in the interpretation section (section 2) of the Act.

Under Sections 128 and 129 of the Property Law Act Cap. 130 any notice required to be served on either the proprietor of any interest in land or any person may be served either personally or by registered mail at the last known place of above or business. Again there is no mention in the interpretation section of the Property Law Act of the term "Notice to Quit". In Fiji Notices to Quit under the Land Transfer Act are frequently given in the form which the Plaintiff claims to have given in the present proceedings namely by a letter from the Plaintiff's solicitors. This was done for example in the case of Dukhi & Others v. Maganbhai & Others Civil Appeal No. 51 of 1979 and is referred to in the judgment of the Court of Appeal dated 27th of June 1980.

At page 7 of the judgment the Court said, "Service was of course proved by admission in the correspondence." At page 8, referring to a letter from the Plaintiff's solicitors to the Defendant the Court said: "Prima facie its validity terminated the tenancy on a date which would be clear to the appellants and prior to the commencement of the litigation".

The Plaintiff submits, and I agree, that any mode of service is acceptable so long as the notice comes to the knowledge of the intended recipient in time to have effect.

Here it probably would have been better for the Plaintiff to have obtained an affidavit of service from PNT Express Courier Limited but I consider the position is adequately covered first by the affidavit of Mohammed Ramzan who deposes that the company's solicitors sent the letter of the 21st of January 1994 to Lautoka PNT Express Courier Limited and secondly, but perhaps more importantly, by the admission by implication of the Defendant's solicitors that the Defendant had received the notice. This is in the copy letter dated 27th of January 1994 which is exhibited to the affidavit of the Defendant dated 29th April 1994. It was held in Re Poyser and Mills' Arbitration (1963) 1 All E.R. 612 that in every case it is sufficient if proof is given that the notice in fact came to a tenant's knowledge in time to be effective as a notice to quit. At page 617 Megaw J. said:

"It is said by counsel for the landlord that, if the notice is sent by post as a registered letter that is sufficient service without proving that it ever reached the tenant at all; but if the notice is sent by post not as a registered letter, and if the party sending it can prove that it has in fact been delivered to the person to whom it is addressed - here the tenant - that is sufficient, and that is due service under s. 92(1) of the Agricultural Holdings Act, 1948."

In Civil Appeal No. 70 of 1974 Vallabh Das Premji v. Vinod Lal, Nanki and Koki Gould V.P. giving the judgment of the Court of Appeal referred at page 129 to part of the affidavit of the Appellant containing an implied but clear admission that he was served with a notice to quit in question and at page 130 His Lordship continued:

"Proof of service of a notice to quit on a date when it will, according to its terms, be effective to terminate the tenancy, is essential to the jurisdiction of the court, in a case of this nature, to make the ejectment order applied for. Section 169 of the Act lists among the persons who may avail themselves of this summary procedure "a lessor against a lessee or tenant where a legal notice to quit has been given". Its legality in this context must include its effectiveness, and to the decision of the question the date of its service is in most cases, and certainly is in the present case, a vitally relevant consideration. Though these applications are directed to be made in Chambers, they are not interlocutory and are concerned with the important matter of the right to the possession of land, and where the date of service of a notice to quit is in issue, it would be quite wrong, in our opinion, to seek to establish it by statements of information and belief."

I consider that in a case such as the present the mode of service does not matter unless and until the Plaintiff has to prove service. Where there is no admission of service the onus is upon a Plaintiff to prove that service was effected. In the instant case I have no doubt that the notice was brought to the knowledge of the Defendant and that the letter of the Defendant's solicitors dated 27th of January 1994 is sufficient admission by the Defendant that it was served with the notice.

The Defendant's first objection therefore fails.

This leaves the question of whether notwithstanding valid service of the Notice to Quit the Defendant should still be given leave to argue his case for either remaining in possession or for an extension of his tenancy for two years.

As I said at the beginning it is noteworthy that the Defendant in his Affidavit in Reply does not state where and on what date and by what means of post he posted his notice of renewal of tenancy to the Plaintiff nor how he claims that notice was delivered to the Plaintiff. In this regard I find the decision of the Court of Appeal in Holwell Securities Ltd. v. Hughes (1974) 1 All E.R. 164 helpful. This case concerned whether an option to purchase freehold property had been validly exercised. The relevant agreement contained this clause:

"The said option shall be exercisable by notice in writing to the (defendant) at any time within six months from the date hereof ......."

The Plaintiff's solicitors wrote a letter to the Defendant giving notice of the exercise of the option. The letter was posted, properly addressed and pre-paid but it was never in fact delivered to the Defendant or to his address. The Court of Appeal held that the option had not been validly exercised. The requirement in Clause 2 of the Agreement for the option to be exercised by "notice in writing to" the Defendant meant that the written document had to be communicated or notified to the Defendant and was inconsistent with the application of the rule that the mere posting of the document was sufficient.

At page 164 Russell L.J. said:

"But the requirement of 'notice ... to', in my judgment, is language which should be taken expressly to assert the ordinary situation in law that acceptance requires to be communicated or notified to the offeror, and is inconsistent with the theory that acceptance can be constituted by the act of posting, referred to by Anson as 'acceptance without notification'."

Lawton L.J. at page 166 made the position even clearer. At letter (b) he remarked:

"Should any inference be drawn from the use of the word 'notice'? In my judgment, Yes. Its derivation is from the Latin word for knowing. A notice is a means of making something known. The Shorter Oxford English Dictionary gives as the primary meanings of the word: 'Intimation, information, intelligence, warning ... formal intimation or warning of something.' If a notice is to be of any value it must be an intimation to someone. A notice which cannot impinge on anyone's mind is not functioning as such."

In the instant case the renewal clause uses the phrase "given to the landlord" so that in my judgment it is vital that the Defendant prove not only that the Plaintiff was made aware of the exercise by the Defendant of the option of renewal but also that that option or notice of renewal was actually given to the Plaintiff. The evidence does not satisfy me that it was. It must have been clear to the Defendant after he received the affidavit on behalf of the Plaintiff that the Plaintiff disputed the Defendant's claim to have served the notice of renewal in time and put the Defendant to strict proof of his claim. The least which I consider the Defendant should have done was to state where and on what date he posted the notice of renewal. He has chosen not to do so.

Accordingly I am satisfied on the material that the Plaintiff has made out a case for summary eviction of the Defendant and therefore make an order in terms of the Originating Summons of the 8th of March 1994. I also order the Defendant to pay the Plaintiff's costs.

JOHN E. BYRNE
JUDGE

Legislation and Cases Cited in the judgment:

(1) Land Transfer Act 1968 Cap. 131.
(2) Property Law Act 1978 Cap. 130.
(3) Dukhi & Others v. Maganbhai & Others Civil Appeal No. 51/1979.
(4) Holwell Securities Ltd. v. Hughes (1974) 1 All E.R. 164.
(5) Re Poyser and Mills' Arbitration (1963) 1 All E.R. 612
(6) Vallabh Das Premji v. Vinod Lal, Nanki and Koki Civil Appeal No. 70/1974.

Additional Cases and Text Books cited in argument:

(1) Abdul Aziz v. Kapadia & Anor. F.C.A. 53/78.
(2) Adams v. Lindsell (1818) 1.B. & Ald. 681.
(3) Byrne v. Van Tienhoven [1880] UKLawRpCP 10; (1880) 5 C.P.D. 344.
(4) City of Camberwell v. Reed [1954] VicLawRp 32; (1954) V.L.R. 653.
(5) R. v. Heron; Ex-Parte Mulder [1884] VicLawRp 141; (1884) 10 V.L.R. (L.) 314.
(6) Harakh Narayan v. Chotu Bhai Patel F.C.A. 26/85
(7) Rup Narayan Anor. v. Suresh Sushil Charan & Anor. H.C. 32/92.
(8) Lord Newborough v. Jones (1974) 3 All E.R. 17.
(9) Stylo Shoes Ltd. v. Prices Tailors Ltd. (1959) 3 All E.R. 901.
(10) Commercial Tenancy Law in Australia - Bradbrook and Croft.
(11) Halsburys Laws of England 4th Edition Vol. 27.
(12) Hill and Redman's Law of Landlord and Tenant (1974).
(13) The Standard Land Contract (Qld.) Duncan & Weld (1990).
(14) Thomas Bishop Ltd. v. Helmville Ltd. (1972) 1 All E.R. 365.

HBC0115J.94S