Chandra v Tuisawau [2003] FJHC 294; HBC0388J.2002S (29 September 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

ACTION NO. HBC0388J OF 2002S

IN THE MATTER of Part XXIV of The Land Transfer Act Cap. 131

BETWEEN:

SATISH CHANDRA a.k.a. SATISH CHANDLER
(f/n Ram Rattan) of 37 Othello Drive, Flatbush,
Manukau City, Auckland, New Zealand, School, Teacher.
PLAINTIFF

AND:

RATU ALIPATE TUISAWAU, RATU ILISONI
TUISAWAU & RATU KINIJOJI TUISAWAU
all of Lot 21, Kuluva Street, Newtown, Nasinu
in the Republic of Fiji Islands.
DEFENDANTS

Counsel for the Plaintiff: R. Naidu: Sherani & Co.
Counsel for the Defendants: J.R. Flower: Q.B. Bale & Associates

Date of Judgment: 29 September
Time of Judgment: 9.45 a.m.

JUDGMENT

This is an application for vacant possession under S.169 of the Land Transfer Act (Cap. 131) by the Plaintiff as the proprietor of the leasehold property comprised and described as Crown Lease 136127 being Lot 21 on DP 4242 in the District of Naitasiri.

Upon the property is a residential building part of which (Flat 1) is, according to the Plaintiff, illegally occupied by the Defendants.

The affidavit in support of the Summons says that the Defendants have continuously failed to pay their monthly rental from July 1999. The Plaintiff as a consequence, had instituted distress proceedings against the Defendants. The Defendants had acknowledged the arrears of rent but still refused to vacate the property when Notice was served.

It is for the Defendants to show cause why they should not give up possession of the subject property.

In his affidavit opposing the Summons, the third-named of the Defendants, Ratu Kinijioji Tuisawau, (D3) conceded that there were arrears in rent, but such debt was owed by him alone and not the other two Defendants. He had subsequently made arrangements with his solicitors to settle the debt. In the case of the other two Defendants, Ratu Alipate Tuisawau and Ratu Ilisoni Tuisawau, (D1 and D2) they had, according to the affidavit, entered into an agreement with the Plaintiff for the purchase of the property for the price of $52,000.00. In the meantime, while D3 had moved out of the flat, the other two Defendants, with the agreement of the Plaintiff, have remained on the property with an agreed monthly rent of $250.00, until the purchase is completed.

The Plaintiff disputes the Defendants’ version of the events. While he concedes that he had agreed on 28 September, 2001 to sell the property to the first two named Defendants, the purchase price agreed to was $80,000.00 not $52,000.00 as stated in Ratu Kinijoji Tuisawau’s affidavit. There had been no further movement in the sale and the offer, according to the Plaintiff, had lapsed after 2 months. The Plaintiff further denied that he had agreed to rent the property for $250.00 per month to D1 and D2. They meanwhile, have remained on the property but have failed to pay any rent whatsoever from July 1999. As for D3’s arrangement with the Plaintiff’s solicitors, to pay the arrears in rent of $8,150.00 at $1000.00 per month from July 2002, the said Defendant has made only 3 instalment payments of a total of $2,000.00 up to October 2002. No subsequent payments have since been received.

COURT’S CONSIDERATION

Preliminary Objections

Plaintiff had in addition to the substantive arguments, in support of its S.169 proceedings, raised two preliminary objections to the Defendants’ response. First, the Plaintiff argued, that D3’s affidavits did not comply with O.41 r.9 (2) of the High Court Rules. It states:

“(2) Every affidavit must be indorsed with a note showing on whose behalf it is filed and the dates for swearing and filing, and an affidavit which is not so indorsed may not be filed or used without the leave of the Court.”

The correct interpretation of the exercise of the Court’s discretions under this Rule is set out in Matasau Holdings Ltd. v. Feint Investment Ltd. HBC0310.2002, where a similar objection was dismissed by the Court. In this instance, I am of the view that the affidavit in question only serves to clarify issues before the Court. It does not substantially affect in an adverse manner the position of the Plaintiff.

The second objection relates to the fact that the affidavit is sworn by D3 who is not in occupation of the property. Generally there is nothing to stop a person from swearing an affidavit in support of a cause notwithstanding that he or she is not a party to the case, as long as the contents are material and personally known to the deponent. In this case, D3 had been the link between the Plaintiff and D1 and D2, and while it would have been desirable to have their affidavit evidence, D3’s affidavit in support of their cause, given the circumstances of this case, is acceptable.

I now turn to the substance of this case. The Defendants have to satisfy this Court that they have a right to the possession of the land (S.172 Land Transfer Act). The two that are in occupation D1 and D2 rely solely on D3’s affidavit. They did not themselves provide affidavit evidence to support their cause. Nor did they appear in person but were represented by Counsel, when the Summons was called and heard.

It is clear from the evidence provided to the Court reinforced by the Counsel’s submission that the Defendants (D1 and D2) are relying solely on the Agreement of 28 September 2001, to substantial their claim and support their cause under S.172. A copy of the said document was submitted and attached as “Annex A” to the Plaintiff affidavit in reply. The “Agreement” however is in effect a notification to the Fiji Development Bank that the Plaintiff has agreed to sell the property to D1 and D2 for $80,000.00. It is signed by the Plaintiff and counter-signed by D1 and D2. While the document could be construed as representing an agreement between the parties, its purpose was solely to assist D1 and D2 in obtaining a loan from the Bank to enable them to purchase the property. Essentially what the Plaintiff is saying is “Provided you (the Bank) are willing to provide the money to D1 and D2, I am in turn, willing to sell my property to them for the sum of $80,000.00.” In other words, it is an offer to sell, conditional on the Bank’s willingness to provide the finance.

There appeared to be another attempt by D1 and D2 to obtain a loan of $52,000.00 from the Housing Authority in January 2002. This too was unsuccessful.

In the end, D1 and D2’s negotiations with the Bank and the Housing Authority did not eventuate in facilities being provided. The so-called “Agreement” of 28 September, 2001 cannot possibly now be relied upon by the Defendants as holding the Plaintiff to a contract to sell the property to them. At the very least, the offer of 28 September 2001, would have been deemed to have lapsed after the rejection of the Defendant’s application for loan to the Bank. It is however reasonable to assume that the Plaintiff’s offer to sell would have lapsed at any rate, after a reasonable time, if no specific time had been given under the agreement. It was almost 12 months from the date of the “Agreement” before the Plaintiff finally filed his S.169 application. There surely had been adequate time for the D1 and D2 to find money to purchase the property. They have not been able to. To further aggravate the situation for the Plaintiff, they have remained in occupation of the property, without paying any rent. The Court finds them in illegal occupation.

In summary the application by the Plaintiff under section 169 proceedings is merited. He is entitled to vacant possession of Flat 1 being part of the complex built on his property CL 13127. The Defendants (D1 and D2) are hereby ordered to give up vacant possession of the said premises with immediate effect.

I award costs of $200 to be paid by all the Defendants to the Plaintiff.

F. Jitoko
JUDGE

At Suva
29 September, 2003