Narayan v Khan [2003] FJHC 35; Hbc0123j.2002s (27 January 2003)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 123 OF 2002S

Between:

JAI NARAYAN
Plaintiff

and

MOHAMMED AIYUB KHAN
Defendant

R.P. Singh for the Plaintiff
M.V. Bhai for the Defendant

JUDGMENT

These are summary proceedings for possession of premises let by the Plaintiff to the Defendant brought pursuant to the provisions of Section 169 of the Land Transfer Act (Cap 131).

It is not disputed that the premises, a “boy house” were let to the Defendant on a monthly tenancy by the Plaintiff who is their registered owner.

Only two issues are in dispute. The first is whether the premises are a dwelling house subject to the provisions of the Fair Rents Act (Cap 269). The second is whether the notice to quit served on the Defendant (Exhibit B to the Plaintiff’s supporting affidavit filed on 22 March 2002) complies with the requirements of Section 89 (2) (b) of the Property Law Act (Cap 130). The second issue only falls to be decided if the first favours the Plaintiff since it is not disputed that the notice does not comply with the requirements of paragraph (v) of the proviso to Section 19 of the Fair Rents Act.

Both the Plaintiff and the Defendant valued the premises. The Plaintiff exhibited a Suva City Council Building Permit which estimates the premises to be worth $15,000. How this estimate was reached was, however, not revealed. The Defendant exhibited a valuation prepared by a registered valuer, one Ramesh Behari, who valued the “boy house” at $11,000. The relevance of these figures is that the Fair Rents Act does not apply to premises of which the statutory value exceeds $12,000 (Section 24 (a)).

Mr. Singh referred me to Billy Ah Koy v. Patel (1979) 25 FLR 49 as authority for two propositions which I accept. The first is that the onus rests on the Defendant tenant to prove that the Act applies and secondly that the “statutory value” of the premises is as defined in the Act. There was no evidence that when he valued the premises Mr. Behari was a valuer appointed under the provisions of the Act and therefore the valuation produced by the Defendant was not a statutory value as defined. Accordingly I find that the Fair Rents Act has no application to these premises.

The first issue having been resolved in favour of the Plaintiff the only remaining question is whether the notice to quit was good.

As will be seen from the notice, the first paragraph, after stating “..... we hereby give you notice to quit and give vacant possession ....” does not go on to state by which date possession is to be given. The only words referrable to the period of the notice are to be found in the second paragraph of the notice which reads:

“TAKE NOTICE therefore that if you fail to vacate the premises within one month as from the date hereof our instructions are to take civil proceedings against you for eviction ...”

It was not disputed, and I accept, that the period of notice been given was “within one month as from the date hereof”.

Mr. Bhai submitted that the words “within one month” mean that the period being granted was less then one month required by the Land Transfer Act. I do not agree. As can be seen from the Shorter Oxford English Dictionary:

“In the limits of a period of time, most usually (“within” means) before the end of, after not more than .....”

In R v. IRC ex parte Knight [1973] 3 All ER 721 it was held that “within three years” means “not later than 3 years”. In my opinion “within one month” means “not later than one month”. Since at least one month’s notice is required by section 89 (2) (b) I find that the length of time for compliance with the notice “within one month” to be good. There is however a final problem upon which I was not addressed by counsel but which is indirectly referred to in paragraph 5 of the supporting affidavit and in paragraph 3 of the affidavit in reply.

According to the Plaintiff’s affidavit the notice to quit was served on the Defendant on 9 February 2002. According to the Defendant it was not served upon him until 13 February 2002. Whichever is correct, both these dates are several days later than the date which the notice bears, namely 6 February 2002.

In my opinion the words “as from the date hereof” can only to taken to refer 6 February 2002 since the notice does not include or refer to any other date. Even if the Plaintiff’s date of service is accepted the period of notice actually given to the Defendant was shorter by several days than the minimum of one month required. In these circumstances I find that a “legal notice to quit” as required by Section 169 (c) of the Land Transfer Act was not served on the Defendant and accordingly these proceedings for possession must fail.

M.D. Scott
Judge

27 January 2003