MOHAMMED TAHIR
(f/n Babu Raza)
Plaintiff
and
WING ZOING WAH AND COMPANY LIMITED
Defendant
G. O’Driscoll for the Plaintiff
Ms. B. Narayan for the Defendant
ass=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> In February 1993 the parties entered into a lease agreement whereby the Plaintiff took certain premises at Nausori from the Defendant
for the purpose of operating a hair dressing salon. A copy ofagreement is Exhi Exhibit 1.
The initial term of the lease was 5 years from 1 January 1992 to 31 December 1996.
Clause 11 of theement which has given rise to this dispute is as follows:
“11.&nbbsp; If the Lessee shallndurie the said said term pay the rent hereby reserved and observe and perform the conditions on
the part of the Lessee herein contained and implied up to the expiration of the said term and shall have given notice in writing
to the Lessor at least three calendar months before the expiration of this Agreement then the Lessor will grant an option to the
Lessee for a renewal of the tenancy for the said premises for a further period of three years on the same terms and conditions except
rental which shall be mutually agreed between the parties and failing such agreement the matter shall be referred to Arbitration
pursuant to the Arbitration Act.”
The following salient facts which are not in dispute emerge from the minut the pre-trial conference hnce held on 7 December 1999 and
from the hearing of the action which took place on 27 November 2001.
On 26 September 1996 the Plaintiff exercised the clause 11 option. A copy of the tiff’s letteletter to the Defendants is Exhibit
2. Although thendant did not not reply to this letter it is accepted by the Defendant that the lease was ly renewed for a further
period of 3 years expiring 31 Janu January 1999.
Following the renewal of the lease differencese between the parties as to the rent to be paid. The; These dinces are not not longer
an issue between the parties.
 an>
Although the renewed lease expired on 31 January 1999 Mr. O’Driscoll told me that the Plaintiff remains in occupation of premises.
He has continued t rent atnt at the same rate of $517.00 per month which was approved by the Prices and Incomes Board in March 1997.
Mr. O’Driscold me that thet the Plaintiff has not purported to exercise a further option to renew the renewed lease for a further
3 year period.
In September 1997 the Plaintiff commenced these proceedings. It will be thaters 2 and 3and 3 referrefer to the payment of rent which
is no longer in issue. The first prayeks specificcific performancthe renewal option in fact exercised in September 1996 for a period
expiring in January 199y 1999.
When Counsel appeareore me I pointed out that the Plaintiff’s case as pleaded had been overtaken by events, amo, among them the Defendants
concession that the option to renew had been validly exercised in September 1996 and the Plaintiff’s failure to attempt to exercise
the option again 3 months before the renewed lease expired in January 1999. In these circumstances neceffective relief was being
sought.
Mr. O’Driscoll then asked me to declare the Plaintiff’s present status given that he is still in occupation and still paying rent
which I was told was being accepted by the Defendant’s without demur. Howeo such case has been peen pleaded and it would not be
right for me to grant any relief, even declaratory in respect of something not pleaded.
ass=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> Ms. an, who filed a careful written submission, only addressed me on the construction of clauselause 11. She told me that she had
understood from Mr. O’Driscoll that this was the sole matter for determination. She told me thatwas surpriurprised by Mr. Ocoll
request that the Plaintiff’s present status be defined: she had not prepared herself felf for that submission.
