Sharma v Archdiocesan Office [2009] FJHC 243; HBC229.2008L (29 October 2009)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 229 of 2008L

BETWEEN:

PARMENDRA RAJESH SHARMA
f/n Goverdhan of Barotu, Rakiraki but presently of
8 Kimberly Street, Suva, Law Clerk/Farmer
Plaintiff

AND:

ARCHDIOCESAN OFFICE
a religious body having its office at Pratt Street, Suva
Defendant

FINAL JUDGMENT

Of: Inoke J.

Counsel Appearing: Mr. I Khan for the Plaintiff
Mr. C B Young for the Defendant

Solicitors: Messrs Iqbal Khan & Associates for the Plaintiff
Young & Associates for the Defendant

Date of Hearing: 27 October 2009
Date of Judgment: 29 October 2009

INTRODUCTION

[1] This is an application by Originating Summons the following orders:

1. That the Defendant do carry on with its obligation to give full effect to the lease agreement dated 29th June, 2007 in favour of the Plaintiff failing which it ought to be held liable for breach of contract.

2. Loss of income $210,000.00.

3. General damages.

4. Cost on an indemnity basis.

5. Such further relief that this Honourable Court deems just and fair.

[2] The application was filed on 22 October 2008 supported by the Applicant’s affidavit also filed on the same day. The application was first called before the Master on 14 November 2008. The Master noted that the application had been served on the wrong party and adjourned it. It came before His Worship again on 12 March 2009 who gave directions for filing affidavits and submissions and further adjourned the matter to 14 May 2009. Following the disruption in the Courts in April 2009 the Registry sent a notice of adjourned hearing for 17 September 2009. It was called before the Master on that day who gave the Defendant an opportunity to file an answering affidavit if it wished and adjourned the matter to 16 October 2009. On 16 October 2009 the Master adjourned the application before me on 22 October 2009 to set a hearing date. I set the hearing for 27 October 2009.

[3] On the morning of the hearing Mr Iqbal Khan sought leave to amend the name of the Defendant to "The Trustees of the Roman Catholic Archdiocese of Suva". It was not a case of the wrong defendant being sued but rather the defendant being wrongly named. The Defendant’s name was on the alleged lease document. The mistake was made by the Plaintiffs solicitors not typing the correct name on the Originating Summons. I granted leave. Mr Young, Counsel for the Defendant, rightly did not object.

THE APPLICANT’S CASE

[4] Mr Khan’s submission was simply that there was an offer by the Defendant which the Plaintiff had accepted and given good consideration by payment of part of the moneys due under the agreement. The lease was signed by the Plaintiff so it was binding on the Defendant. Simple contract law.

THE RESPONDENT’S CASE

[5] Mr Young did not see the need to file an affidavit in reply because he said he needed only rely on the Plaintiffs affidavit which itself showed the flaws in the Plaintiffs case.

[6] He opposed the application on three grounds. Firstly, he submitted that the lease was not signed by his client. Secondly, there was no evidence of payment of the consideration, and thirdly, there was no commencement date written in the lease. The commencement date was left blank. He cited two case authorities which say that such an omission is fatal.

[7] In Lace v Chandler [1944] 1 All E R 305 at 306B, the English Court of Appeal (Lord Greene MR, MacKinnon and Luxmore LJJ) said:

"The question immediately arises whether a tenancy for the duration of the war creates a good leasehold interest. In my opinion, it does not. A term created by a leasehold tenancy agreement must be a term which is either expressed with certainty and specifically, or is expressed by reference to something which can, at the time when the lease takes effect, be looked to as a certain ascertainment of what the term is meant to be."

[8] In Prudential Assurance Co Ltd v London Residuary Body and others [1991] UKHL 10; [1992] 3 All E R 504 at 510B, Lord Templeman, in delivering the main judgment of the House of Lords affirmed the decision in Lace v Chandler (supra):

"My Lords, I consider that the principle in Lace v Chandler [1994] 1 All E R 305, reaffirming 500 years of judicial acceptance of the requirement that a term must be certain applies to all leases and tenancy agreements."

CONSIDERATION OF THE APPLICATION

[9] These two cases are of the highest authority and I would respectfully follow them. However, I think it is still open for the Plaintiff to prove that there was an agreed starting time for the alleged lease. It is open for example that the contract to issue the lease is partly in writing and partly oral, although the affidavit material filed in this application fell short of doing that because of the way the Plaintiff has pleaded his case. So, for that reason, this application fails.

[10] What I think is fatal to this application is the fact that an innocent third party has acquired rights to the land in question. That defeated any rights which the Plaintiff had in respect of the land. This application is effectively an application for specific performance of a lease which cannot be specifically performed because of the acquisition of that lease by the innocent third party. The Plaintiffs remedy is for damages, if he can prove it, and not specific performance. He is free to bring a Writ action for damages if he so wishes.

COSTS

[11] I think the application is misconceived and should not have been brought so the Plaintiff must pay costs which I set at $800 to be paid within 21 days.

ORDERS

[12] The Orders are therefore as follows:

1. The application by Originating Summons filed on 22 October 2008 is dismissed.

2. The Plaintiff shall pay the Defendant’s costs of $800 within 21 days.

Sosefo Inoke
Judge