Subarmani v Farmers Supermarket Ltd [2011] FJHC 64; Civil Action 18.2010 (11 February 2011)

IN THE HIGH COURT of FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION No: 18/10

IN THE MATTER of an application by the plaintiff under section 169 of the Land Transfer Act, Cap. 131

BETWEEN:

SUBARMANI
f/n Kaniga of Savusavu, Businessman
PLAINTIFF

AND:

FARMERS SUPERMARKET LIMITED
a limited liability company having its registered office at 11 Yasawa Street, Lautoka.
DEFENDANT

RULING

By Summons dated 24 May 2010 filed under section 169 of the Land Transfer Act, Cap. 131 the Plaintiff summoned the Defendant to show cause why he should not give up vacant possession to the Plaintiff of the Plaintiff's land and premises in Savusavu known as Lot 13 on Deposited Plan 2196 on CT 10354. The application was supported by an affidavit sworn by the Plaintiff on the 31 July 2010.

THE AFFIDAVIT IN SUPPORT

The Plaintiff in his affidavit in support deposed as follows:-

1. That he is the proprietor of the land known as Lot 13 on DP 2196 in the Certificate of Title Number 10354;

2. That pursuant to an agreement between the Plaintiff and the Defendant dated the 12 April 2008 the Defendant was to occupy the building on the said land;

3. That pursuant to clause 1(a) of the said agreement the Defendant was to pay rent of $4,000:00 per month which was to be paid in advance on the first day of each month;

4. That the Defendant before the 9 April 2010 was, despite various calls for payment, in arrears of rent to the sum of $8,000:00 and that on the said date the Plaintiff levied for distress of rent pursuant to which the Defendant paid rent;

5. That notwithstanding the payment of rent the Plaintiff is entitled to proceed for eviction;

6. That the Defendant failed to abide by the said agreement and was hereby given notice to vacate the said building and land;

7. That the Defendant has also breached the said tenancy agreement by failing to pay the water rates to the sum of $1,500:00 by default of which the water metre was removed and water supply disconnected;

8. That the Defendant has no lawful right to continue occupation and that I am entitled to seek vacant possession.

THE DEFENDANTS AFFIDAVIT IN OPPOSITION

The Defendant in reply to the affidavit in support of the application filed two affidavits one by Sanjay Prasad a Director of the Defendant company and one Mohammad Kamal builder of Savusavu.

Sanjay Prasad deposed as follows:-

1. That he is a Director of the Plaintiff company and is authorised to make the affidavit on its behalf;

2. That he accepts that Subramani is the proprietor of the relevant land and that there was an agreement entered into between the Plaintiff and the Defendant for the Defendant to rent the premises on the said land for a rental of $4,000:00 per month;

3. That the Plaintiff had accepted all payments of rent from May 2008 to April 2010 as when paid;

4. That the rent was paid to the Plaintiff either in cash or cheaque;

5. At other time rent was paid directly to the Plaintiff's Bank Account and that particulars of the Plaintiff's bank account were provided by the Plaintiff to the Defendant to enable rent payments;

That in respect of the allegations contained in paragraphs 5,6 & 7 regarding the non payment of rent and the subsequent levy for distress for rent and the defendant's failure to abide by the tenancy agreement the Defendant deposed that:-

(a) Rent was not paid for March and April 2010 due to administrative problems within the Defendant Company.

(b) No calls for payment were made but the Plaintiff always knew that the rent would be paid.

(c) The Defendant has carried out substantial repairs and improvements to the Plaintiff's building with his consent and approval and the value of the building has been considerably increased. The Defendant spent in excess of $70,000.00 in repairs and improvements with his own workmen. The commercial value of the improvements if done through a contractor would exceed $150,000.00, such sums 'being spent in anticipation of continued occupation of a long term lease.

(d) The Defendant verily believes that other persons are offering a higher rent for the premises because of the substantial improvements done by the Defendant.

(e) The Plaintiff in seeking possession of the premises is motivated by greed.

(f) The Plaintiff is also fraudulent in his action as he knows that the improvements done were permanent and intended to serve the Defendant for the whole of its tenure of ten years and the renewal of the tenancy provided for in the lease agreement.

(g) The Plaintiff is seeking to profit unfairly from the investment made by the Defendant.

(h) The Plaintiff levied distress on 9th April 2010 for 2 months rent and annexed hereto marked "B" is a copy of the distress notice and authority to Bailiff which:-

(i) is signed by the Plaintiff's Solicitors on 9th April 2010;

(ii) executed on 9th April 2010 at 7.00 am in Savusavu;

(iii) includes claims for Solicitors costs and bailiff charges which are unreasonably high and unlawful;

(iv) were paid despite their illegality because of the nature of the demand, and the refusal to give back the premises until costs were also paid.

(i) The Plaintiff is not entitled to proceed to eviction after payment of rent, and the return of the premises to the Defendant to continue occupation and is thereby estopped from evicting the Defendant.

(j) Payment of the arrears under distress was received and accepted by the Plaintiff by a deposit of the rent and costs into his bank account.

6. I am advised and verily believe that:-

(a) The notice of termination is unlawful and the Plaintiff is not entitled to terminate. All rentals due were paid up by the 9th of April 2010 and the notice of termination was dated the 10th April 2010 and posted to the Defendant in Lautoka.

(b) The letter of termination acknowledged the continued existence of the tenancy even after the alleged breach which had been remedied by payment.

(c) The allegations of unlawful alterations to the building are untrue and were done with the active consent and personal supervision of the Plaintiff through Mohammed Kamal Builders whom the Plaintiff had recommended to the Defendant.

(d) I had arranged the lease in April 2008, discussed the required alterations with the Plaintiff and returned to Lautoka.

(e) Alter the first lot of work was done, the builders rendered an invoice. The Plaintiff advised me that the work was satisfactorily completed; and payment could be made. I travelled to Savusavu, inspected the work done and made payment to the builder.

(f) I then discussed the next stage of work with the Plaintiff and the builder, gave instructions and went back to Lautoka. The Plaintiff over saw the builders work and approved the same for payment. The Defendant then made payment to the builder.

(g) A third lot of works was discussed with the Plaintiff and the builder. These again were left with the Plaintiff to supervise and done through the builder. I came back from kai~itoka when I was advised by the Plaintiff that the work had been completed and payment was made.

(h) I again discussed the finishing work proposed to prepare the shop~ for the Defendant's business. Because the Plaintiff did not want to use the builder Kamal, I had to bring my own workmen from Lautoka. Virtually everyday the Plaintiff came into the shop and viewed the work being done. He did not ever complain or object.

(i) The Defendant opened the premises for business and invited the Plaintiff who attended the same for the opening.

(j) The Plaintiff complained that he was not satisfied with some of the work done on the front of the premises whereupon I personally asked the Plaintiff to find his own builder and do the additional work he required.

(k) The Defendant paid for all the work done on the premises.

(l) No letter of any kind was ever given on 4th November 2005 to the Defendant, and in the circumstances was six months after completion of the works and there was no reason for the Plaintiff to write any such letter.

(m)In any event the Plaintiff has waived any right he had to terminate.

7. THE Defendant says that although some payments of rent were not strictly within the specified time, the Plaintiff has: -

(a) always accepted the rent whenever paid;

(b) never complained about delays;

(c) the arrears as at 9th April 2010 were paid on that day. A copy of the deposit slip into the Plaintiff's bank account is annexed hereto marked "C".

(d) received rent payments for May, June and July 2010 all of which have been paid to the Plaintiff. Annexed hereto marked "Dl" and "D2" are copies of receipts evidencing payment of rents for May and June 2010, and the Defendant has not received a receipt for the July rent.

(e) no notice rejecting such payments has been given to the Defendant by the Plaintiff who continues to benefit from such payments.

(f) After the termination notice was issued in April 2010 receipts for rent paid for May and June were issued affirming the continuance of the tenancy and recognized the existence of the lease after the alleged termination notice.

8. THE termination of tenancy is unlawful and improper.

9. THE Plaintiff has added paragraph 8 as an additional breach not stated in the termination notice to which the Defendant says: -

(a) The previous premises were served by three water meters.

(b) The Plaintiff does his yaqona business at the rear of the Defendant's premises in a shed, and-spends much of his time in the Defendant's shop.

(c) The Defendant believes that the, alleged arrears of water charges relate to water used by third parties and not from the one water connection which serves the rented premises. The bills for "water consumed" by the Defendant have all been paid.

(d) The Plaintiff is wrongfully pressing the Defendant to pay for someone else's water consumption, and the Defendant is presently enquiring with the water authority and requesting an investigation into the unreasonably high water bill from the low usage of water.

(e) The non payment of arrears of water was never a ground for termination nor does it effect the Plaintiff in any way given the Defendant's continued occupation.

10. THE Defendant verily believes that in the circumstances the Plaintiff has no right to possession and that this claim is fraudulent and fictitious.

11. THE Defendant further says that the Plaintiff being fully aware of the alterations and improvements to the premises and actively taking part in the construction of the same is estopped from denying knowledge of the fact or that the same was carried out without his consent.

12. THE Plaintiff has by his actions waived his rights to forfeit the lease and is estopped from claiming so.

13. ALTERNATIVELY if the Defendant is in breach (which is denied) then the Defendant prays for relief against forfeiture as all rents have been paid to date and substantial development made to the property in anticipation of continued occupation at least for ten (10) years.

The second affidavit in support of the Defendant's affidavit in opposition deposed by the builder who renovated the premises to suit the purposes of a super market, dealt mainly with the type and amount of work done and the knowledge of the Plaintiff of the work done. The Plaintiff then filed an affidavit in reply to the affidavit in opposition, the affidavit contains some twenty nine (29) paragraphs in which he denies the matters deposed by the defendant and of the builder and raised further matters relevant to the agreement.

DETERMINATION of the APPLICATION

Both parties at the conclusion of the hearing filed submissions and I thank them for filing the submission in time. I do not wish to address in detail the matters raised by the Counsels in their submissions but one thing is clear and that is the issues raised by them are extensive.

I am satisfied though that the Plaintiff is the last registered proprietor of the relevant land and that he can bring an action under section 169, particularly under the first limb of the section.

The defendant has to show cause as to why he should not give up vacant possession (section 172) and in this regard the Defendant must show on affidavit evidence why the Court should not make an order for vacant possession. He does not have to prove a conclusive right to remain in possession only some tangible evidence establishing a right or at least supporting an arguable case for such a right (see Morris Hedstrom Limited –v Liaquat Ali (Action No: 153/87)

The phrase tangible evidence has often been used as a general criteria establishing a right or cause why the Court should not make an order for vacant possession under section 169. For the evidence to be tangible it must be real and capable to be established not a vague or an elusive perception of a right of possession. The matters raised by the Defendant in affidavit evidence are tangible and can be established.

The following are some of the issues which need to be determined:-

1. The interpretation of the Tenancy Agreement particularly the powers of the Landlord under Clause 4(d);

2. Whether there are breaches of the Tenancy Agreement;

3. The issue of the delay in rental payment and its acceptance when late and whether the landlord is estopped from claiming against it;

4. The issue of water rates; and

5. Most importantly the renovations to the property by the Tenant and its costs whether done with the knowledge of the landlord and any damages which may arise.

One could quite clearly see from the matters deposed by both parties in their affidavits that this matter could not be dealt with summarily and hence there is no need to deal with the affidavits in detail. The Defendant's affidavit in opposition shows that he has tangible evidence to establish a right of possession which could not be dealt with summarily. This does not necessarily mean that the Plaintiff has exhausted the avenue available to him to seek redress in another way.

Pursuant to section 172 if the Defendant or person summoned shows cause to the satisfaction of the Court why an order under 169 could not be made the judge shall dismiss the summons with costs against the proprietor or make any order and impose any terms he thinks fit.

In view of the above, the Court makes the following findings:
1. That the Defendant has shown cause on affidavit evidence pursuant to Section 172 of the Land Transfer Act to some right to possession which would preclude the granting of an order for possession in favour of the Plaintiff as the Registered Proprietor;

ORDERS

Accordingly, the Court makes the following Orders:

1. That the Plaintiff's application for immediate vacant possession of the property comprised and described in Certificate of Title No. 10354 being all that portion of Crown Grant land described more particularly as Lot 13 on Deposited Plan No. 2196 known as "Natuvu" (part of) and containing an area of 26 perches presently occupied by the Defendant of which the Plaintiff is the registered proprietor, cannot be dealt with summarily under section 169;

2. That pursuant to section 172 I further order that the Summons be treated as a writ and the Affidavits filed in respect thereof be part of the Pleadings and the matter proceed as if by writ action;

3. That costs to be costs in the cause; and

4. That the matter is adjourned before me for directions on 9 March 2011.

11 FEBRUARY 2011

MASTER
ROBINSON H