Chand v Prakash [2010] FJHC 364; Civil Action 169.2010 (27 August 2010)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Civil Action No. 169 of 2010

BETWEEN:

AMI CHAND
trading as Tabua Furniture Limited having its registered office at
Manoca Industrial Sub-Division, Nausori.
Plaintiff

AND:

AVIN PRAKASH
trading as Tabua Furniture Investments Limited having its registered office at
Manoca Industrial Subdivision, Nausori, Director.
Defendant

Before: Master Anare Tuilevuka

Counsels:
For the Plaintiff: Sunil Kumar Esquire
For the Defendant: Tirath Sharma Lawyers

Date of Hearing: 26th August 2010
Date of Ruling: 27th August 2010

RULING

BACKGROUND

[1]. On the 4th day of June 2010, the plaintiff filed an originating summons pursuant to section 169 of the Land Transfer Act. The originating summons is reproduced in full below:

"LET AMI CHAND f/n Shiu Prasad Trading as Tabua Furniture Limited, Registered office at Manoca Industrial Sub-Division, Nausori, Director, herein attend before a Judge in chambers at Government Buildings, Suva on the 1st day of July of 2010 at the hour of 9.45 o'clock in the forenoon on the hearing of an application by the Applicant AMI CHAND f/n Shiu Prasad Trading as Tabua Furniture Limited, registered office at Manoca Industrial Sub- Division, Nausori, Director, FOR AN ORDER that the Defendant do forthwith give Vacant Possession of all those premises being Crown Lease No. 6566, Lot 11, 24.6 Perches and Lot 12, CL NO. 006090 at Manoca Industrial Sub- Division in the Tikina of Bau and Province of Tailevu, UPON the grounds set forth in the Affidavit of AMI CHAND fathers name Shiu Prasad sworn and filed herewith.

[2]. The plaintiff and his wife, Savita Devi, jointly are the last registered proprietors of the property. Devi has filed an affidavit confirming her authority to the plaintiff to institute the current proceedings against the defendant.

[3]. The affidavit of Avin Prakash filed on 22nd July 2010 is filed herein opposition to the application. He is one of the directors of Tabua Furniture Investments Limited ("TFIL").

[4]. According to Prakash, on 13th December 2007, TFIL bought the plaintiff's business Tabua Furniture Limited ("TFL") together with all its machinery with a first down payment of $75,000-00. TFIL paid a further sum of $20,000 for the stock.

[5]. Following that transaction, TFIL continued to operate the business from the premises and has been paying a monthly rental or $1,500. It manufactures furniture for Courts Homecentres and MH Homemakers.

[6]. No tenancy agreement was ever signed between the parties

[7]. Prakash deposes however that it was mutually agreed between the parties that TFIL could use the premises as long as they wanted and that they would be given the first opportunity to purchase the premises should they wish to do so. It appears that all that was discussed between the parties on that point was not reduced in writing. Nothing that the parties had agreed to was ever reduced in writing.

[8]. Prakash deposes in paragraphs 9 to 11 that TFIL would need a reasonable amount of time to find an alternative premises and to relocate its business to it. Then in paragraphs 12 to 19, he highlights various facts which according to him, would flaw the section 169 application.

[9]. The approach that Mr. Sharma took in his submissions in Court mirror the tone of Prakash's affidavit. At first, he appears to concede that his client should be vacating the premises. In fact, he said in Court that his clients are "slowly moving out" but require time.

[10]. Then he argues that the whole procedure is irregular. The reason it is irregular is because the Notice to Vacate was issued and served by Sunil Kumar Esquire to Tabua Furniture Limited, yet the section 169 proceedings names Avin Prakash trading as Tabua Furniture Investments Limited as the defendant.

[11]. The issue raised is whether the Notice is defective in substance so as to render invalid the whole proceedings?

[12]. In Fiji, there is authority that any mode of service is acceptable so long as the notice comes to the knowledge of the intended recipient in time to have effect (as per Mr. Justice Byrnes in Gulam Mohammed Properties Ltd v Patel [1994] FJHC 66; Hbc0115j.94s (22 June 1994)). Of course, in this case, the defendant is not raising service as an issue, but rather, the substance of the notice that was served on him.

[13]. It is difficult to work out whether Avin Prakash or TFIL is the tenant of the plaintiff. To begin with, there is no tenancy agreement. Mr. Kumar has supplied some authorities that reiterate the point that a notice to quit must be expressed in such decisive and unequivocal terms, that the person to whom it is directed can entertain no reasonable doubt as to its intended effect.

[14]. I will leave that issue for determination in another appropriate case. In this case, there is yet another issue that supersedes all others. And that is the fact that the Director of Lands consent has not been obtained by the plaintiff to institute these proceedings. There is no evidence before me either that the Director of Lands consent was obtained beforehand in the dealing between the parties to allow the defendant to operate his business on the premises.

[15]. In Khan v Prasad [1996] FJHC 85; Hbc0480j.96s (23 December 1996), Mr. Justice Pathik expressed the view that where the director of lands consent was not obtained on the defendant's occupation of a crown protected lease, the defendant's occupation was therefore unlawful which means that the defendant cannot justify remaining in possession. Interestingly, the defendant in that case had submitted that because there was no consent of the Director of Lands he cannot be evicted.

[16]. Pathik J however said that the defendant cannot in the circumstances be regarded as a lawful tenant of the plaintiffs.

The defendant's assertion will not stand as in MISTRY AMAR SINGH v KULUBYA 1963 3 AER p.499, a Privy Council case, it was held that a registered owner of land was entitled to recover possession because his right to possession did not depend on the illegal agreements in that case but rested in his registered ownership and as the person in possession could not rely on the agreements because of their illegality he could not justify his remaining in possession. That case "concerned an illegal lease of 'Mailo' land by an African to a non-African which was prohibited by a Uganda Statute except with the written consent of the Governor. No consent was obtained to the lease. After the defendant had been in possession for several years the plaintiff gave notice to quit and ultimately sued him for recovery of the lands. He succeeded." (quoting from RAM KALI below).

Also in RAM KALI f/n Sita Ram and SATEN f/n Maharaj (Action No. 93/77) KERMODE J. expressed a similar view:-

"It is not necessary to determine whether there was an alleged sale as the defendant contends or a tenancy as the plaintiff alleges. Either transaction was illegal without the consent of the Director of Lands. .... While the plaintiff did disclose the illegal tenancy her claim for possession is based on the independent and untainted grounds of her registered ownership and she does not have to have recourse to the illegal tenancy to establish her case". (underlining mine)

[17]. I am of the view that the same principles are applicable to the facts of this case.

[18]. Hence, whether it is TFIL or Avin Prakash that is occupying the land, and whether or not the Notice was regular or irregular, the occupation would still be unlawful ab initio. Accordingly, neither TFIL nor Prakash can under any circumstances ever successfully show cause under section 172 of the Land Transfer Act against an eviction order.

ORDERS

(i) TFIL and/or Avin Prakash is/are to vacate the property (Crown Lease No. 6566, Lot 11, 24.6 perches and Lot 12 Crown Lease No. 006090 at Manoca Industrial Sub-Division in the Tikina of Bau and Province of Tailevu within one month of the date of this ruling.

(ii) TFIL and/or Avin Prakash to pay costs to the plaintiff which I summarily assess at $500 to be paid within 14 days of the date of this Ruling.

Anare Tuilevuka
MASTER

At Suva
27th day of August 2010.