Singh v Kaniappa [2004] FJHC 400; HBA0010.1998L (13 April 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBA0010 OF 1998L

BETWEEN:

ARVIND SINGH
Plaintiff

AND:

KANIAPPA
Defendant

Counsel for the Applicant: Mr. J. Boseiwaqa
Counsel for the Defendant: Ms. Natasha Khan

Date of Hearing & Judgement: 13 April 2004

EXTEMPORE JUDGMENT

This matter comes before the court by way of an appeal from the decision of the Learned Magistrate sitting at the Magistrates Court, Ba on the 27^th February 1998. It would appear that the proceedings were first commenced on the 27^th March 1991 but for the purposes of these proceedings, it is the judgment of the Learned Magistrate to which I have referred that is relevant.

The plaintiff/appellant relevantly sought vacant possession of lands occupied by the defendant by Notice dated 15^th March 1990. The plaintiff/appellant by its lawyers sought the payment by the tenant/defendant of a premium pursuant to section 13 of the Agricultural Landlord and Tenant Act (Cap. 270).

Section 13 of that Act relevantly provides:

“(1) Subject to the provisions of this Act relating to the termination of a contract of tenancy, a tenant holding under a contract of tenancy created before or extended pursuant to the provisions of this Act.....shall be entitled to be granted a single extension (or a further extension, as the case may be) of his contract of tenancy for a period of twenty years, unless -

(a) ......................

(b) the contract of tenancy was created before the commencement of this Act and has at the commencement of the Agricultural Landlord and Tenant (Amendment) Act, 1976 an expired term of more than thirty years:

Provided that, notwithstanding the provisions of section 14, a premium equivalent to one year’s rent shall be payable in full in advance on the first day of the first year and of the eleventh year of such extension.”

The Notice dated 15^th March 1990 in paragraph 2 seeks payment of one year’s premium.

Paragraph 3 of the Notice makes to the tenant and offer to purchase the freehold and paragraph 4 of the Notice states and I quote: -

“If the premium of $445.00 is not paid within three months of the service of this notice upon you, our client will take further actions.”

There is no indication given in the Notice as to what further action the landlord intended.

Section 37 of the Agricultural Land and Tenant Act relevantly provides: -

“(1) A landlord may terminate his contract of tenancy and may recover possession of an agricultural holding –

(a) ...................
(b) ..................

(c) by three months’ written notice to quit –

• (i) where the tenant is not cultivating or operating such holding according to the practice of good husbandry and the interests of the landlord are materially prejudiced thereby; or
  
• (ii) if any part of the rent in respect of the holding is in arrear for a period of three months or more or if any lawful term or condition of the tenancy which capable of being remedied is not performed or observed by the tenant:
  

Provided that, if the tenant pays the rent in arrear or, in the case of breach or non-observance of any lawful term or condition of the tenancy, the tenant makes good such breach or non-observance within three months of the notice to quit, the notice to quit shall deemed to be cancelled and of no force and effect.”

The appellant submits that the Notice dated 15^th March 1990 serves a two fold purpose, that is, a Notice pursuant to section 13 seeking the payment of the premium to which the landlord is entitled and secondly, serving the purpose of a Notice to quit pursuant to section 37 in the event that the premium is not paid within the time set forth in the Notice, that is three months.

The appellant refers the court to the decision of Penton v Barnett [1897] UKLawRpKQB 149; [1898] 1 Q.B. 276 as being authority for the principle that if the breach is capable of remedy then ample time must be given to facilitate the remedy and that the period of three months is sufficient time.

That does not appear to me to be an issue.

The significant issue as, I said, is whether or not the Notice dated 15^th March 1990 is in effect a notice pursuant to section 37 of the Agricultural Landlord and Tenant Act and is therefore a Notice to Quit.

To my mind to satisfy the fundamental requirements of a Notice to Quit, it must use words that convey to the tenant the landlord’s demand that the tenant quit the property and deliver possession to the landlord at the expiration of the stated period of time or on the happening of an event.

It also seems to me that the regime established by section 37 of the Agricultural Landlord and Tenant Act requires that there be a written Notice to Quit which gives to the tenant three months notice and relevantly has a pre-requisite that the rent be in arrears for three months if the Notice is to be founded on the failure to pay rent.

I don’t interpret section 37 as enabling a Notice under section 13 to be read and construed as a Notice to Quit.

In my opinion the Notice dated 15^th March 1990 does not amount to a Notice to Quit and certainly the determination of the Learned Magistrate that the Notice was ambiguous in its terms as a finding open to him based upon the submissions made to him at that time and accordingly the Orders of the Court will be:

1. The appeal is dismissed;
   
2. The appellant to pay the respondent’s costs assessed in the sum of Seven Hundred and Fifty Dollars ($750.00).
   
3. The monies held in the Trust Account of Messrs Mishra Prakash & Associates be released to the respondent forthwith.
   

JOHN CONNORS
JUDGE

AT LAUTOKA
13 APRIL 2004