Suva City Council v Suva City Council Staff Association [1995] FJHC 169; Hbc0389j.95s (24 November 1995)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 0389 OF 1995
(Consolidated with Civil Action No. 0280 of 1995)

Between:

SUVA CITY COUNCIL
Plaintiff

- and -

SUVA CITY COUNCIL STAFF ASSOCIATION
Defendant

Mr. R. Gopal for the Plaintiff
Mr. H. Nagin for the Defendant

JUDGMENT

There are presently before the court two (2) substantive actions which although concerned substantially with the same parties and subject matter have not been consolidated.

The first substantive action comprises a Writ of Summons issued by the defendant Association on the 1st of June 1995 and acknowledged on the 14th of June 1995 in which the defendant Association seeks various declarations and damages (See: C.A. 280/95).

The second substantive action is an originating summons issued by the plaintiff Council on the 28th of August 1995 under Section 169 of the Land Transfer Act (Cap. 131) seeking an order for immediate vacant possession of an office space occupied by the defendant Association in a building owned by the plaintiff Council and for which the defendant Association have been served with Notices to Quit (See: C.A. 389/95).

The present application by the defendant Association seeks the consolidation of both actions and an open court trial on the basis that the validity of the plaintiff Council's Notices to Quit are being challenged on several undisclosed grounds and a bald assertion '... that this case cannot be dealt with by way of a summary procedure and requires oral evidence.'

In this regard it is noteworthy that the plaintiff Council has filed a Statement of Defence to the defendant Association's Writ but the defendant Association has not seen fit to similarly respond to the affidavit deposed by the Town Clerk in the plaintiff Council's application for vacant possession.

In any event the Town Clerk has sworn an affidavit opposing the present application in which he deposes to the almost complete lack of particularity in the defendant Association's challenge to its Notices to Quit despite a written request for the same, and its inexplicable hesitancy in filing a substantive affidavit opposing the plaintiff Council's summons despite being ordered to do so by the Court (per Pathik J. on 15.9.95).

In the circumstances it is not at all surprising that the Town Clerk deposes to his continuing belief: "... that Civil Action No. 280 of 1995 is frivolous, vexatious and an abuse of the process of the Court, brought only as a delay tactic to stall any eviction proceedings against the Defendants."

In this latter regard I would observe that pleadings in the defendant Association's Writ action closed (without a reply being filed) in early September 95 and to date no Summons for Directions has been issued by the defendant Association in clear breach of its duty under Order 25 r.1(1) of the High Court Rules contrary to what might be expected of a plaintiff concerned with expediting the trial of its action.

At the outset it must be said that the existence of pending actions is insufficient reason in itself to invoke the Court's discretion to consolidate. In addition it must be made to appear to the Court either:

"(a) that some common question of law or fact arises in both (actions); or

(b) that the rights to relief claimed therein are in respect of or arise out of the same transaction or series of transactions;"

and that such an order would be conducive to the speedy and effective resolution of the dispute and would further the interests of justice.

Having said that however I am satisfied that both 'limbs' are satisfied in this instance and that consolidation is appropriate, however bearing in mind the nature of the substantive actions that are being consolidated, I further order that the defendant Association's Writ action be stayed until after the determination of the plaintiff Council's summons for vacant possession.

Having thus consolidated the actions on terms, is this Court precluded from summarily determining the plaintiff Council's summons? In my respectful view given the rather narrow legal issue involved it is not only proper but also desirable that the Court should proceed to do so.

I am of course mindful that the Fiji Court of Appeal has also made it quite clear that the existence of other proceedings before the Court is not in itself a cause sufficient to resist an application under Section 169 of the Land Transfer Act (per Mishra J.A. in Dinesh Jamnadas and Anor v. Honson Limited (1985) 31 F.L.R. 62 at 65 C.

It is also well to recall the words of Stuart J. (as he then was) in Vivek Prasad v. Ram Sundar Lautoka C.A. 788/76 (unreported) where he described Section 169 proceedings as being: 'to provide a quick and relatively inexpensive summary method of finding out whether a person who is in possession had any legal right to be there.'

In somewhat similar vein Speight V.P. said of the 'Section 169' procedure in Harakh Narayan v. Chotu Bhai Patel Civil App. No. 26 of 1985 (unreported) at p.4:

"... It must be understood that this is a summary proceeding designed to avoid delay. It is not like a first call, or a day-for-mention, when a number of lengthy and defended cases are put into the list purely to make fixtures for a future hearing. The Act is to be administered sympathetically but having due regard to the purposes for which the procedure was devised."

and later at p.5 the learned Vice-President said:

"Counsel should be alert to the fact that in this procedure they should, if they are appearing on the first day, be able to put some matter of weight forward to persuade the Judge that an order should not be made, or at least that something will be forthcoming so that adjournment is called for."

In this particular case not only was nothing 'of weight' placed before the court on the first day, but an "order that the defendant Association file an affidavit in reply within 14 days" appears to have been ignored presumably on the mistaken assumption that an order for consolidation would result in the plaintiff Council's summons being subsumed by the defendant Association's Writ action.

Finally reference may be made to the judgment of the Fiji Court of Appeal in Lotan v. Douglas Garrick Civil Appeal No. 45 of 1984 (unreported) where the Court in rejecting an appeal against an order for summary possession under Section 169 of the Land Transfer Act (Cap. 131) in the face of a pending ALTA application, said at p.15:

"... before a judge can entertain the possibility that there is a cause for refusing to give up possession because of the pendency of an ALTA application, the occupant must point to some evidence worthy of evaluation by the Agricultural Tribunal. This is the threshold question. To hold otherwise would be to allow sham defences for the purposes of delay."

Accordingly the issue in this case may be narrowed down to the single question: Has the defendant Association furnished any evidence of a right to possession worthy of evaluation by the Court?

In this regard the defendant Association avers in its Statement of Claim in Civil Action No. 280 of 1995 (where it is the Plaintiff) as follows:

"3. THE Defendant had leased to the Plaintiff a certain office space in its building known as Civic Centre Building.

4. 4. IT was always agreed by and between the Plaintiff and the Defendant that the Plaintiff would pay a nominal rent of $50.00 per month for the said office space and would continue to occupy the said office space so long as the Defendant's employees remained members of the Plaintiff.
   
5. 5. IN breach of the above agreement the Defendant purported to give to the Plaintiff Notices to Quit dated 31st March, 1995 and 28th April, 1995 and has refused to accept rent.
   
6. 6. THE Plaintiff says that both the said purported Notice to Quit are invalid."
   

Quite plainly the defendant Association's 'right to possession' is based upon an alleged 'agreement to lease' entered into between the parties. I say 'alleged' because no effort has been made in the pleadings to refer to any dates, correspondence (if any) or terms in the agreement which might be of assistance in narrowing the ambit of any inquiry.

Indeed, if I may say so, the contents of paras. 3 and 4 (ibid) are singularly unhelpful in identifying the date of commencement of the 'agreement', or the date of occupation by the defendant Association of the office space (if different) or any other terms and conditions usually to be found in leases of commercial premises.

Be that as it may the pleaded 'agreement to lease' if strictly proved, would effectively give rise in learned counsel for the plaintiff Council's words, to 'a lease almost in perpetuity' and would, in my view, be void for uncertainty albeit that the parties, the premises and the rental may be considered sufficiently certain.

In Lace v. Chantler (1944) 1 K.B. 368 Lord Greene M.R. in rejecting as a good leasehold, a tenancy granted 'for the duration of the war' said at p.370:

"A term created by a leasehold tenancy agreement must be expressed either with certainty and specifically or by reference to something which can, at the time when the lease takes effect, be looked to as a certain ascertainment of what the term is meant to be. In the present case, when this tenancy agreement took effect, the term was completely uncertain. It was impossible to say how long the tenancy would last."

(my underlining)

Similarly in the present case the term or duration of the alleged leasehold tenancy agreement is expressed to be "... so long as the (plaintiff Council's) employees remained members of the (defendant Association)." Such a reference point far from being capable of 'certain ascertainment' is, in my view, wholly incapable of ascertainment whether it be considered: 'at the time when the lease takes effect', at the trial or at some unknown date in the distant future.

Needless to say I consider it inescapable that, whatever might be deposed by the defendant Association as to the negotiations or circumstances leading up to the the conclusion of the alleged 'agreement to lease', the lease thus concluded and as pleaded in the defendant Association's Statement of Claim is of such an indeterminate nature as to be incapable of giving rise to a lawful right in the defendant Association to remain in occupation of the said office space.

In view of the foregoing it is unnecessary to deal in any detail with the submission of learned counsel for the plaintiff Council that the alleged 'agreement to lease' falls foul of the requirements of Section 59 of the Indemnity, Guarantee and Bailment Act (Cap. 232). Suffice it to say that there is some doubt as to the relevance or applicability of the Section to the present case.

In all the circumstances and with a view to bringing these proceedings to an end I grant the plaintiff Council's application for vacant possession in Civil Action 389 of 1995 with costs to be taxed if not agreed and execution stayed for a period of 21 days from the date hereof.

Needless to say in the light of the foregoing the defendant Association's Writ in Civil Action No. 0280 of 1995 must be and is hereby formally dismissed as plainly frivolous and vexatious.

(D.V. Fatiaki)
JUDGE

At Suva,
24th November, 1995.

HBC0389J.95S