Wati v Channan [2011] FJHC 464; HBC71.2011 (23 August 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 71 of 2011

IN THE MATTER of Land Transfer Act Cap 131 and under Section 169 of the Land Transfer Act. Cap. 131.

BETWEEN:

SATYA WATI (f/n Shiu Prasad) as trustee for SHALENDRA SINGH, INDAR VEER SINGH, GURBINDAR SINGH and SURJIT SINGH (all sons of Sansar Singh) all of Cunningham, Suva.
PLAINTIFF

AND:

SUNITA WATI CHANNAN (f/n Gurudayal Singh) of 386 Bidesi Place, Suva, Domestic Duties.
DEFENDANT

BEFORE: MASTER DEEPTHI AMARATUNGA
COUNSELS: Ms Amrita Maharaj of MC LAWYERS for the Plaintiff
Ms Milinia Drova of PARSHOTAM & CO. for the Defendant
Date of Hearing: 27th June, 2011
Date of Ruling: 23rd August, 2011

RULING

1. INTRODUCTION
   

1. This is an application by the Plaintiff in terms of Section 169 of the Land Transfer Act, for eviction of the Defendant. The Defendant alleges over payment of rent, repairs to the premises. Admittedly, there is an action in the Magistrate's Court for the recovery of alleged overpayment of rent by the Defendant. Defendant states that there are complicated issues of fact and law and the proceduere in Land Transfer is not suitable. The validity of the notice to quit is a preliminary issue.
   

2. FACTS
   

2. The Plaintiff made this application in pursuant to section 169 of the Land Transfer Act for vacant possession of the premises namely bottom flat situated at 386 Bidesi Place, Samabula
   
3. Admittedly, the Defendant is a tenant in the said premises since 2005. No tenancy agreement was produced and the rent was paid monthly.The amount of the rent is not specified in the affidavit in support but, the Defendant has produced receipt up to the month of June, 2008. The Plaintiff alleges that Defendant has not paid rent since November, 2007.
   
4. The monthly payment of the rent for the said premises was $400.00 but, the Defendant alleges that the said payment of $400 was in excess of the approved rent for the said premises. The Defendant failed to produce the evidence to support the said approved rent in their affidavit in opposition, but produced a document indicating the approved rent as $142.00 but initially this was not objected, but later the counsel for the Plaintiff objected this document being produced at the hearing. The said document is not a certified copy, and the Plaintiff did not have an opportunity to examine it prior to the hearing of this application. The counsel also sought a cost of $1,000.00 if the hearing is vacated to allow the Defendant to file the said document, the Defendant did not agree to a cost and the matter proceeded.
   

100. PRELIMINARY LEGAL ISSUE
     

5. At the outset the counsel for the Defendant stated that the notice to quit was not in conformity with the law, but the said objection was based on the capacity of the Plaintiff to send a notice of quit as she has obtained the letters of administration after the said notices were sent by her lawyers.
   
6. It is to be important that before dealing with such an issue as to the capacity of the Plaintiff, the notice on the face of it is illegal as to the time period granted for the Defendant to quit the premises is insufficient. Though this is not an issue that was raised by the Defendant's counsel it is a fundamental thing in notice to quit that time period specified in the law has to be strictly adhered and if not such a notice is null and void in the eyes of the law, and all the steps taken after the said notice become null and void as well.
   
7. In this application adequate time has not been granted in the notice to quit. Admittedly, the Defendant was a tenant of the Plaintiff and there was no written tenancy agreement produced by either of the parties to this application and the rent was paid monthly. The burden of proving the proper service of quit notice is with the Plaintiff, as she is the applicant and has to fulfill the proper requirements in terms of the provisions of the law.
   
8. The law relating to the time period of the quit notice is found in Section 89 of the Property Law (chapter 130) read with the Section 169 of the Land Transfer Act.

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)

9. 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 no written tenancy agreement between the parties and no such agreement has been filed even in the affidavit in opposition or affidavit in reply filed by the parties to this action. In the absence of any such agreement the provisions in the Land Transfer Act read along with the Property Law, will decide the correct time period of the notice to quit.

10. The required time period of the quit notice is understandably one month in terms of the Section 89(2)(b) of the and Section 169 of the Land Transfer Act.

Section 169 of the Land Transfer Act states as follows:

"169. The following persons may summon any person in possession of land to appear before a judge in chambers to show cause why the person summoned should not give up possession to the applicant-

(a). the last registered proprietor of the land;

(b). a lessor with power to re-enter where the lessee or tenant is in arrears for such period as may be provided in the lease and, in the absence of any such provision therein, when the lessee or tenant is in arrear for one month, whether there be or be not sufficient distress found on the premises, to countervail such rent and whether or not any previous demand has made for the rent;

(c). a lessor against a lessee or tenant where a legal notice to quit has been given or the term of the lease has expired.

(emphasis is added)

It is clear that the Section 169 provides instances where the proceedings could be instituted against a tenant and at least a minimum arrears of one month and a 'legal notice' to quit are two mandatory requirements that the applicant has to satisfy. The notice to be legal, it has to conform to the law relating to quit notice that is contained in the Property Law Section 89.

11. The Plaintiff has given two notices of quit, one on 31st August, 2009 which granted 14 days to the Defendant to quit and the second notice was dated 22nd October, 2009 which granted 7 days for the Defendant to quit the premises and both notices were falling short of the legally required time period for the quit notice.

12. The time period for the quit notice is determined by statutory law in both Land Transfer Act as well as in Property Law requires one month notice, in the absence of written provision in the terms of the tenancy contract, and any notice that gives less than that stipulated time cannot be considered a legally valid quit notice. It is also to be noted if there is a written contract the burden is on the Plaintiff to satisfy the court of the existence of the agreement and any express provision that deviate from the general provision of the law contained in the Property Law.

13. So the proceeding based on the said quit notice is void ab initio and this application has to be dismissed on the preliminary issue of the invalid quit notice send by the Plaintiff to the Defendant.

14. Without prejudice to the above preliminary point being held in favour of the Defendant, I will decide the objections of the Defendant below.

D. SERIOUS QUESTIONS OF LAW AND FACTS TO BE DECIDED
15. The Defendant is required to fulfill the requirements contained in the Section 172 of the Land Transfer Act, once the burden on the Plaintiff is met.

Section 172 states as follows:

If the person summoned appears he may show cause why he refuses to give possession of such land and, if he proves to the satisfaction of the judge a right to the possession of the land, the judge shall dismiss the summons with costs against the proprietor, mortgagee or lessor or he may make any order and impose any terms he may think fit.

Provided that the dismissal of the summons shall not prejudice the right of the plaintiff to take any other proceeding against the person summoned to which he may be otherwise entitled.

Provided also that in the case of a lessor against a lessee, if the lessee, before the hearing, pay or tender all rent due and all costs incurred by the lessor, the judge shall dismiss the summons."

16. Section 172 of the Land Transfer Act states that "if a person summoned appears he may show cause why he refuses to give possession of such land and, if he proves to the satisfaction of the judge a right to the possession of the land, the Judge shall dismiss the summons with costs against the proprietor and he may make any order and impose any terms he may think fit provided that the dismissal of the summons shall not prejudice the right of the plaintiff to take any other proceedings against the persons summoned to which he may be otherwise entitled." The burden is shifted to the Defendant to satisfy the court that she has a right to possession of the land in dispute. In Morris Hedstrom Limited –v- Liaquat Ali CA No: 153/87, the Supreme Court of Fiji described the scope of the said provision.

17. In the case of Morris Hedstrom Limited –v- Liaquat Ali CA No: 153/87, the Supreme Court said that:-

"Under Section 172 the person summonsed may show cause why he refused to give possession of the land if he proves to the satisfaction of the Judge a right to possession or can establish an arguable defence the application will be dismissed with costs in his favour. The Defendant must show on affidavit evidence some right to possession which would preclude the granting of an order for possession under 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 that some tangible evidence establishing a right or supporting an arguable case for such a right must be adduced." (emphasis is mine)

18. In this case the Plaintiff is alleging that the Plaintiff has paid the rent in arrears, as the land lord has charged a rent that is over and above the statutorily regulated rent in the said area. A person who alleges such an overpayment has to prove its allegation.

19. In the affidavit in reply the Plaintiff state as follows:

'The allegation that the normal rental was $142.00 is denied in any event the Defendant has failed to provide any tangible evidence that the rent ought to have been $142.00 as alleged. In any event I was not the trustee of the property at the material time and therefore I am unaware of the allegations contained therein.

The issues raised by the defendant are not an issue in the current proceedings as the reliefs sought by the Plaintiff is vacant possession

The allegations contained therein are denied and in any event the issue of rent is before the Magistrate's Court."

20. If the allegation of $142.00 as the approved rent in terms of the Counter Inflation Act (Rent Control) is not correct the Plaintiff had the opportunity of producing the documentary evidence to prove that the approved rent is $400 per men sum, that was charged from the Defendant, as they had the last opportunity of reply in this application as it is done in a summary manner, through affidavit evidence. The Plaintiff has chosen to deny the allegation without any documentary proof, in the same manner as the allegation was made by the Defendant. At the same time the Plaintiff also admitted that the same issue is before the Magistrate's Court and also states that the alleged overcharge was done before she became the trustee of the property.

21. The Plaintiff in her affidavit in support of this application at paragraph 2 states as follows:

'The Defendant occupies as a tenant part of our property referred to in paragraph one above and described as bottom flat situated at 386 B Bidesi Place, Samabula from November, 2007 to date and has not paid any rent since November, 2007.'

22. In the affidavit in reply the Plaintiff has stated that the Defendant was residing in the said property since 2005 January and the error was a typographical one, but has conveniently decided not to comment on the rent receipts that were produced in the affidavit in opposition for the months from January to June in year 2008. So, it is clear that when the Plaintiff stated that no rent was paid from November, 2007 that is not a correct statement.

23. It is also important that the land lord cannot bring an action for the eviction of the tenant unless at least the tenant is in arrears for at least a rent of one month, in the absence of any written agreement between the parties to contrary. The Defendant is alleging over payment and if so this application cannot be made by the plaintiff on the basis of arreas of rent. The Plaintiff has filed this action on the basis of non payment of rent from November, 2007, but it is evident that the Defendant has produced even the receipts of payments of rent upto June, 2008 and the Plaintiff in the affidavit of reply, decided not to comment on those receipts for the rent of the said property. The analysis of evidence will show there were payments made of rents after November, 2007, and this shows the unreliability of the averments made by the Plaintiff. The Plaintiff has in the same affidavit stated that the Defendant became a tenant in 2007, which she retracted later stating it was a typographical error.

24. The Plaintiff has not mentioned the amount of rent for the premises either in the affidavit in support or affidavit in reply. Neither has she produced a written contract of tenancy. Plaintiff states that 'In any event I was not the trustee of the property at the material time and therefore I am unaware of the allegations contained therein.' So, the Plaintiff is unable to contradict or produce evidence in this proceeding through an affidavit, since she was not the trustee of the property, at that time and that statement along with the other averments in the affidavit in support that were proven to be false shows that the issues before the court cannot be dealt by the affidavit evidence alone. This leaves important issues being not answered by the Plaintiff and the Defendant should be allowed to provide evidence in a proper trial. In the case of Nagar Bhai Khewal Bhai Patel v Manikam Reddy (Fiji Court of Appeal) Civil Appeal 17 of 1982 decided on 30th July,1982 it was held in page 6 (Judgment of Justice Gould, Vice President with other two judges of the Court of Appeal agreeing with the said judgment):

'There were matters perculiarly within the knowledge of the appellant. Yet he asks the Court to accept a bare allegation in one paragraph of an affidavit, that no consent was given. We consider the summary procedure under section 169 quite unsuitable for such a matter. The respondent, having been called upon to show cause why he should not give up possession, did so by showing that he was tenant of the premises. The appellant then seeks to plead that the tenancy which he himself granted was illegal, null and void. He seeks to take advantage of his own wrong. In such a situation the onus is upon him to establish his case, plead the facts he relies upon and be subject to such matters as discovery and interrogatories. The respondent is obviously entitled to the benefit of a full investigation of facts and law, for which, in the particular circumstances, we find summary procedure inappropriate"

25. In this application the default of the rent is in question, as the Defendant is alleging over payment and has also instituted action to recover such over payment. The 'notice to quit' sent through the lawyers of the Plaintiff's lawyers would show the reason for the eviction was non payment of rent, and it is clear that the said notices were sent in terms of Section 169 of the Land Transfer Act.

Section 169 of the Land Transfer Act, which states that:

'a lessor with power to re-enter where the lessee or tenant is in arrears for such period as may be provided in the lease and, in the absence of any such provision therein, when the lessee or tenant is in arrear for one month, whether there be or be not sufficient distress found on the premises, to countervail such rent and whether or not any previous demand has made for the rent'.

26. So, it is important to note that at least one month rent has to be in arrears to institute an action in terms of the said provision of law, when it relates to arrears of rent. Clearly, this is not a conclusive issue as the approved rent has to be determined and any overpayment has to be established in a court of law in a proper trial. So, clearly summary procedure contained in the Land Transfer Act to obtain possession is not suitable for this action depending on the available materials and affidavit evidence before me. The affidavit in support cannot be relied upon as already, two important facts contained therein were found false imcluding the date of alleged default, that goes to the root of this application and the locus standi of this application.

4. CONCLUSION
   

27. Plaintiff has failed to give the legal notice that is a sine qua non in any proceeding for ejectment. Even without prejudice to the said preliminary point the Defendant has established a right to possession of the premises, as the correct amount of the rent payable in terms of the law is an issue that cannot be determined in this action in summary manner. The Plaintiff's application for ejectment of the Defendant is based on the arreas of rent and the 'quit notices' were based on alleged non payment of rent and that has to be established and at least one month arrears of rent is needed to succeed in this application. This cannot be established by the plaintiff in this action. The Plaintiff's summons for vacant possession is dismissed and struck off and the Defendant is also granted a cost of $1000.00 assessed summarily.

The Court Orders as follows:

1. The summons for the vacant possession filed by the Plaintiff is dismissed and struck off;
   
2. The Defendant is granted a cost of $1000.00 assessed summarily.
   

Dated at Suva this 23rd day of August, 2011.

Mr D. Amaratunga
Acting Master of the High Court
Suva