BS Shankar & Co Ltd v Nur Ahmed & Co Ltd [2003] FJHC 274; HBC0181j.2003s (17 November 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 181 OF 2003

IN THE MATTER an application under section 169 of Part XXIV of the Land Transfer Act, Cap. 131 for an Order for immediate vacant possession.

Between:

B.S. SHANKAR & CO. LIMITED
Plaintiff

and

NUR AHMED & CO. LIMITED
Defendant

Mr. G.O’Driscoll for the Plaintiff
Mr. A. K. Singh for the Defendant

JUDGMENT

By summons dated 9 May 2003 B.S. Shankar & Co. Limited (the ‘plaintiff’) seeks an order that Nur Ahmed & Co. Limited (the ‘defendant’) give immediate vacant possession of the ‘property situated at Navua being comprised in Certificate of Title No. 25631 and described as Lot I on Deposited plan No. 2329 known as “Tokotoko” situated in the District of Navua on the Island of Vitilevu,’ of which the plaintiff is the registered proprietor (hereafter referred to as the “land”).

The application is made under s169 of the Land Transfer Act, Cap. 131 (the ‘Act’) supported by an affidavit. The defendant has filed an affidavit in reply opposing the application followed by an affidavit in response thereto. As ordered both counsel made written submissions.

Plaintiff’s case

It is the plaintiff’s case that it is the registered proprietor of the land. It requires the property for its own use and had therefore caused a notice to quit served on the defendant on 26 March 2003 giving it a month to vacate the land. The defendant has failed to comply with the notice and is still in possession.

The plaintiff denies making any assurance as stated in paragraph 8(b) and also denies the statements in paragraph 8(c)(i), (ii) and (iii) of the defendant’s affidavit.

Defendant’s contention

While opposing the application, the defendant has through its General Manager Sunil Chand deposed, inter alia, that:

(a) it is a monthly tenant of the plaintiff; there was assurance that the plaintiff will not exercise its right to issue a month’s notice.

(b) it is not one month’s notice but one year’s notice was to be given to vacate as, if there was going to be a sale of the land, the defendant will be given the first option to purchase; alternatively, if the defendant did not purchase then one year’s notice would be given to vacate.

(c) the plaintiff was aware of the defendant’s nature of business, namely, hardware and timber business, when it purchased from Suncourt Hardware;

(d) relying on Ram Chand’s promise it made substantial improvements to the property.

The defendant says that because it has extended its business it will not be possible to vacate the land on a month’s notice.

The defendant prays that it be given at least 12 months to vacate and that the plaintiff be ordered to pay the costs of the improvement done to the “premises”.

Consideration of the issue

The plaintiff is the registered proprietor of the land and as such is entitled to bring this action under s169 of the Land Transfer Act, Cap. 131.

The procedure under s.169 is governed by sections 171 and 172 of the Act which provide respectively as follows:-

“s.171. On the day appointed for the hearing of the Summons, if the person summoned does not appear, then upon proof to the satisfaction of the Judge of the due service of such summons and upon proof of the title by the proprietor or lessor and, if any consent is necessary, by the production and proof of such consent, the judge may order immediate possession to be given to the plaintiff, which order shall have the effect of and may be enforced as a judgment in ejectment.”

s.172. If the person summoned appears he may show cause why he refuses to give possession of such land and, if he proves to the satisfaction of the judge a right to the possession of the land, the judge shall dismiss the summons with costs against the proprietor, mortgagee or lessor or he may make any order and impose any terms he may think fit.”

It is for the defendant to ‘show cause’. For the reasons hereafter appearing I find that the defendant has not done so.

The defendant has advanced a number of reasons as stated hereabove as to why he should remain in possession. However, he says that if he is required to vacate, bearing in mind the nature of his business, he should be given 12 months’ notice.

On the aspect of this long a notice, although it is a monthly tenant, it is pertinent to note that in Action No. 16/03 a s.169 application was made, but because the notice was short, in that it was not a month’s notice, the tenancy was not properly terminated (as it failed to comply with s.82(2)(b) of the Property Law Act). The application was therefore dismissed by Jiten Singh J. on 26 February 2003. In that action Notice was served it appears in December 2002 (Notice to Quit is dated 1 December 2002).

Now, in this second action, Notice was served on 26 March 2003. It is almost 12 months since the first notice was issued. This means that the defendant knew almost 12 months ago that the plaintiff requires vacant possession of the land.

Be that as it may, because of the denial by the plaintiff of any assurance of the nature alleged by the defendant and because there is nothing in writing of any document in regard to any proposed arrangement or understanding between the parties, one is left with the fact that this is a monthly tenancy and a month’s notice to quit is sufficient and proper. If the defendant wanted to fortify its position by having a longer tenancy or lease it should have taken steps in that direction if it was concerned about expanding its business on such shaky foundation in regard to the tenancy. If the defendant has extended its business and brought about improvements to the ‘premises’ it has done so at its own risk and with its eyes open. Why should the plaintiff who is the registered proprietor suffer? Section 39(2) of the Act is applicable here, it reads:

“Subject to the provisions of Part XIII no estate or interest in any land subject to the provisions of this Act shall be acquired by possession or user adversely to or in derogation of the title of any person registered as the proprietor of any estate or interest in such land under the provisions of the Act”.

There are no complicated questions of fact in this case to be investigated. Therefore procedure under s169 is most appropriate here. On this aspect, in Ram Narayan s/o Durga Prasad v Moti Ram s/o Ram Charan (Civ. App. No. 16/83 FCA) Gould V.P. said:

“... the summary procedure has been provided in the Land Transfer Act and, where the issues involved are straightforward, and particularly where there are no complicated issues of fact, a litigant is entitled to have his application decided in that way.”

On the requirement of section 172, the Supreme Court in Morris Hedstrom Limited v. Liaquat Ali, (Action No. 153/87 at p2) said as follows and it is pertinent:

“Under Section 172 the person summoned may show cause why he refuses to give possession of the land and if he proves to the satisfaction of the judge a right to possession or can establish an arguable defence the application will be dismissed with costs in his favour. The Defendants must show on affidavit evidence some right to possession which would preclude the granting of an order for possession under Section 169 procedure. That is not to say that final or incontrovertible proof of a right to remain in possession must be adduced. What is required is that some tangible evidence establishing a right or supporting an arguable case for such a right, must be adduced.”

In this case the defendant says that he has expended money on improvements and that the plaintiff be ordered to pay for it but this is opposed by it. There is nothing in writing to show that improvements etc were done with the plaintiff’s consent. The following passage from the Court of Appeal case of Ram Chand and Others v Ram Chandra (Civil Appeal No. 21/02S) is apt and I adopt it here:

“the fact that a tenant carries out improvements without the consent of his or her landlord does not give him a right to continue in the occupation of the land if the landlord is otherwise lawfully entitled to it. On the other hand, if improvements are carried out pursuant to some understanding, however loose, it may be that in some cases rights will be conferred on tenants at least to purchase the land if a price can be agreed upon. One cannot lay down any hard and fast rule. Every case will depend upon its own facts.

Conclusion

To conclude, the defendant has not ‘shown cause’ to my satisfaction why it should not give vacant possession of the land as required under s.172 of the Act.

The plaintiff is the registered proprietor of the land and for the reasons given hereabove it is entitled to immediate vacant possession. The fact that it has expended money on improvements is something for which it could seek compensation or damages if it could prove that it has been misled into expending money on the alleged improvements on the land by the alleged assurances, but this cannot affect the plaintiff which holds the Title to the land. In this case the defendant cannot produce any title or enforceable right to remain on the land.

It is therefore ordered that the defendant give immediate vacant possession of the land to the plaintiff but execution is stayed until 18 February 2004. I award costs against the defendant in the sum of $350.00.

D. Pathik
Judge

At Suva
17 November 2003