Bala v Silimaibau [2011] FJHC 405; CC 112.2011 (20 July 2011)

IN THE HIGH COURT OF FIJI
PROBATE JURISDICTION

Civil Action No. 112 of 2011

IN THE MATTER of an application under Section 169 of Part XXIV of the Land Transfer Act (Cap 131) for an Order for immediate Vacant Possession.

BETWEEN:

DHINESH BALA (f/n Shanti lal Bala) and PRASHILA BALA (f/n Joseph Ashok), both of 5 Yasi Road, Delainavesi, Lami, Fiji Islands, Administration Manager and Human Resource Manager, respectively, [the "Landlords"]
PLAINTIFFS

AND:

JALE SILIMAIBAU and ARIETA BULEWA, both of flat 3, 5 Yasi Road, Delainavesi, Lami, Fiji Islands, Mini Van Driver and Domestic Duties, respectively, [the "Tenants"]
DEFENDANTS

BEFORE: MASTER DEEPTHI AMARATUNGA

COUNSELS: MR HOWARD P. for the Plaintiffs
: MR SHAH. S. for the Defendants

DATE OF HEARING: 15th July, 2011
DATE OF RULING: 20th July, 2011

RULING

1. INTRODUCTION
   

1. This is an application made by the Plaintiff in terms of Section 169 of the Land Transfer Act. The Defendant did not file an affidavit in opposition though, he was granted an additional time, till the hearing of this application. A counsel appeared on behalf of the Defendant and took a preliminary objection that the notice to quit is not conformity with the law.
   

2. THE LAW
   

Preliminary Legal Issue

2. At the outset the counsel for the Defendant stated that the notice to quit was not in conformity with the law and adequate time has not been given granted in the notice to quit. Admittedly, the Defendant was a tenant of the Plaintiff and there was a written tenancy agreement and the rent was paid monthly. The law relating to the time period of the quit notice is found in Section 89 of the Property Law (chapter 130).
   

It states as follows:

89.-(1) No tenancy from year to year is implied by payment of rent.

(2) In the absence of express agreement between the parties, a tenancy of no fixed duration in respect of which the rent is payable weekly, monthly, yearly or for any other recurring period may be terminated by either party giving to the other written notice as follows:-

(a) where the rent is payable yearly or for any recurring period exceeding one year, at least six months' notice expiring at the end of any year of the tenancy; or

(b) where the rent is payable for any recurring period of less than one year, notice for at least a period equal to one rent period under the tenancy and expiring at any time, whether at the end of a rent period or not. (emphasis is added)

3. It is clear that the application of the provisions contained in Section 89 of the Property Law, will come in to effect only, when there is no express agreement between the parties. In this instance there is a tenancy agreement between the parties and no affidavit in opposition filed, denying it or setting out the right for the Defendant to possess the premises.

4. The said Tenancy Agreement contained an express provision in relation to the notice to quit and states as follows:

'5(d) Whenever the rent or any part thereon, whether legally demanded or not, is in arrears for the space of 7(seven) days, this tenancy shall then cease, and the tenant shall have a further 7 days to vacate the premises. The landlord shall then retain the security/bond deposit.'

5. The learned counsel for the Defendant also states that in any event the time granted in the Tenancy Agreement is contrary to law, but he failed to cite the relevant law that has been contravened by the above term of the contract.

6. The Land Transfer Act (cap 131) does not specify a time period for the quit notice and the law applicable in the absence of an express time period is Property Law. The Section 89 of the Property Law specifically indicates that the time periods stipulated in the said provision will apply, only in the absence of an express agreement between the parties. So, in this case there is clear agreement between the parties for a 7 day quit notice and that has been done by the Plaintiff and that is sufficient notice for this application

100. CONCLUSION

7. Preliminary objection overruled and the notice to quit is a valid notice under the laws of Fiji.

Dated at Suva this 20th day of July, 2011.

Mr. D. Amaratunga
Acting Master of the High Court
Suva