Sarju Prasad Ltd v Patel [2008] FJHC 289; HBC385.2007 (6 June 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA

CIVIL ACTION NO. HBC 385 OF 2007

BETWEEN:

SARJU PRASAD LIMITED
Plaintiff

AND:

HASMUKH PATEL
Defendant

Appearances: Messrs Patel & Sharma(Nadi) of the Plaintiff
Messrs Sherani & Co for the Defendant

Date of Hearing: 18 April 2008
Date of Judgment: 6 June 2008

JUDGMENT

[1] These are proceedings for possession brought by the registered proprietor (the plaintiff) of the land comprised in Crown Lease No 547797, on which stands a substantial commercial building which is let out by the plaintiff to various tenants. The defendant is the occupant of one of the shops within the building pursuant to a Tenancy Agreement entered into between the parties for a period of two years from 1 August 2005. It is not in dispute that the defendant was served a notice to quit on 16 October 2007.

[2] The application is opposed on the following grounds:

(i) the defendant, allegedly on 5 May 2007, wrote to the plaintiff purporting to exercise an option to renew the tenancy for a further period of two years from 1 August 2007.

(ii) he holds a valid tenancy over the premises until 1 August 2009.

[3] The plaintiff denied receiving the letter of 5 May 2007. I note that the letter was not addressed to the plaintiff directly. It was addressed to the plaintiff c/- Patel & Sharma, the plaintiff’s solicitors. A law clerk from the firm, in an affidavit dated 8 February 2008 deposed that the firm did not receive the letter. Exhibited in her affidavit are copies of pages from the inward mail register for the period 26 April to 31 May 2007 confirming that the said letter was not received by the office of the plaintiff’s solicitor.

The issues arising on the Summons

[4] The only issue to be determined is whether the defendant has proved a right to possession or has established an arguable defence to the application. To do this the defendant must show on affidavit evidence some right to possession which would preclude the granting of an order for possession under the 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 some tangible evidence establishing a right or supporting an arguable case for such a right must be adduced.[1] What must also be taken into consideration is that the procedure under Section 169 is not appropriate where there are complicated questions of fact to be investigated. It is necessary however that there be more than a mere allegation of the existence of a competing claim, or of a defence to the registered proprietor’s claim to possession. "There must ......be some evidence in support of the allegation indicating the need for fuller investigation which would make Section 169 procedure unsatisfactory".[2]

[5] Justice Byrne in a similar case [3] said that it was vital that the defendant prove not only that the plaintiff was aware of the exercise by the defendant of the option of renewal but also that that option or notice of renewal was actually given to the plaintiff. Further that the least the defendant should have done was to state where and on what he had posted the notice of renewal. Having considered the competing affidavits I have no hesitation in arriving at my conclusion that the purported notice of renewal by the letter purporting to exercise the option to renew was an afterthought. The defendant’s letter was not addressed to the plaintiff nor received by the plaintiff. It was also not received by the plaintiff’s solicitors. It is pertinent that when the notice to quit was served on 16 October 2007, the defendant did not produce the letter dated 5 May 2007 nor alert the plaintiff that he had exercised the option to renew some five months earlier. The letter of 5 May 2007 is nothing more than a sham.

[6] In any event under the tenancy agreement the ultimate discretion of whether to renew or not lay with the plaintiff. The letter of 5 May 2007 could not and did not create a new tenancy. The defendant also faces the hurdle of the lack of consent under Section 13 of the State Lands Act. In the absence of such consent, the alleged new tenancy relied on is illegal.[4]

Conclusion

[7] The defendant’s evidence does not disclose factual issues of a sufficient kind to require a hearing on the merits. The defendant has also failed to show a legal right to remain in occupation of the property in question. He has not sufficiently established some reasonably arguable defence or case which requires to be heard at a proper trial of the proceedings. The evidence adduced by him falls short of the threshold he was required to establish.

Orders

(i) the defendant is to deliver up immediate vacant possession to the plaintiff of the shop he occupies on land comprised in Crown Lease No 547797 on Lot 1ND 1819 in the Township of Lautoka.

(ii) the defendant is also ordered to pay the plaintiff’s costs of these proceedings assessed in the sum of $1,000.00.

G. Phillips
JUDGE

At Lautoka
6 June 2008

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^[1] Haroko Prasad –v- Abdul Hamid [2004] FJCA 10; Civil Appeal No ABU 0059 2003
^[2] Darshan Singh –v- Puran Singh 33 FLR 63 at 67
^[3] Gulam Mohammed Properties Limited –v- Suresh Patel HBC 115.94 High Court Suva.
^[4] Civil Aviation Authority of the Fiji Islands –v- Leo Matrix Fax HBC 115 of 2004/L per Justice Singh.