Kumari v Ram [2011] FJHC 775; HBC51.2009 (28 November 2011)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 51 of 2009

BETWEEN:

SUDHA KUMARI of Nadawa, Nasinu, Suva, Housewife and
SUDHA KUMARI as Administratrix in the Estate of Surya Kumar
APPLICANT

AND:

BALWANT RAM c/- Babasiga Foodmart Shop, Lot 33, Tiri Road, Nadawa.
RESPONDENT

Appearances: Mr Lajendra for the applicant
Mr G.O' Driscoll for the respondent
Date of hearing: 19th July, 2011

RULING

1. The applicant seeks leave to appeal, out of time, a decision of the Master.

The applicant had filed an application under Section 169 of the Land Transfer Act seeking an order for ejectment of the respondent of the land comprised in Housing Authority Sub Lease No.330445 Lot 33 on DP 6927.

The respondent's defence was that he was lawfully in possession of the property in terms of a fixed term Agreement dated 3 September, 2007,which makes no provision for termination during the lease period. It was also asserted the applicant had accepted payment of rent for February 2009, after the issue of notice to quit dated 8 January, 2009.

The Master's decision

The Master dismissing the Section 169 summons held as follows: -

(i) there was a fixed term agreement between the parties which cannot be determined by a Notice to Quit.

(ii) I reserve ruling on the issue of whether or not the agreement was null and void without Housing Authority consent – given that the Housing Authority appears to have acquiesced to the letting agreement between the parties judging by the tone of its letter...

(iii) the acceptance of rent is evidence of the continuation of the fixed-term arrangement.(emphasis added)

2. The application for leave

The applicant's position, as set out in her affidavit, is that the application for leave to appeal was not filed within the time limit set out in Order 59 rule 11, for the reason she was waiting for the Master's Ruling on the "main ground" upon which her application was made.

Mr Lajendra submitted that the Agreement titled "Variation of Agreement to Lease" dated 3rd September, 2007 was null and void, since prior consent had not been obtained from the Housing Authority, before execution as required in terms of the head lease. The case of Khan v Prasad, [1996] FJHC 85 was relied in support.

The proposed grounds of appeal appended to the applicant's supporting affidavit provides that the learned Master erred in law and fact:

1. in holding there was a fixed term Agreement between the parties.
   
2. in holding the Housing Authority appears to have agreed to the letting arrangement between the Appellant and the Respondent.
   
3. in not holding that the Agreement dated 3 September 2007 is null and void without Housing Authority consent.
   

The second ground takes issue with an observation made by the Master .The third to a matter upon which ruling has been reserved.

I accept Mr O' Driscoll contention that it is inappropriate that the application for leave was made before this court, since the Master had reserved ruling on this issue.

As the first proposed ground, it is stated that the Master fell into error in finding there was a fixed term agreement between the parties.

The Master's finding was that a fixed term agreement cannot be determined by a notice to quit. So far as the court is exercising its jurisdiction to grant leave, the court must look at the matter as a whole, rather than on a piecemeal approach.

In the circumstances, it is not necessary for me to consider the application to file leave to appeal out of time.

The applicant's application for leave to appeal, the decision of the Master is dismissed with costs summarily assessed at $ 750.

A.L.B. Brito-Mutunayagam
Judge

28th November 2011