Course Money Holdings Ltd v Takapu [2012] FJHC 1003; HBC17.2012 (4 April 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 17 of 2012

IN THE MATTER
an application under section 169
of Part XXIV of the Land Transfer Act, Cap. 131
for an Order for immediate vacant possession.

BETWEEN:

COURSE MONEY HOLDINGS LIMITED
a limited liability company having its registered office at
Lot 18, Bulei Road, Laucala Beach Estate, Suva
PLAINTIFF

AND:

EMALATA TAKAPU, SOSEFO O. HANSEN
and PELENATITA TUPOU
all of Flat 2, 26 Ritova Street, Suva,
Occupations Unknown to the Plaintiff.
DEFENDANTS

BEFORE : Master Deepthi Amaratunga

COUNSEL : Mr. Pillay for the Plaintiff
No appearance for Defendant (affidavit in opposition filed by Fa & Co)

Date of Hearing : 02nd April, 2012
Date of Ruling : 04th April, 2012

RULING

1. INTRODUCTION
   

1. The Plaintiff is the last registered proprietor of the property and seeking to evict tenant who has not only failed to pay the rent, but also alleged to have failed to pay the bond money in terms of the contract of tenancy and has alleged to have caused damage to the property. The Defendant state that he has done certain improvements, namely curtaining, a purchase of a carpet for the floor and cleaning, for which he is alleging that $2,700 expended to the building and claiming that he has a right to remain in possession for the improvements done. In the contract of tenancy the premises was handed over and accepted 'as-is' basis and the terms of the contract of tenancy expressly indicate that fact. The Defendant has not shown a recognizable legal right to remain in possession. In Chand v Ali [2005] FJHC 247 Winter J stated that 'In so far as the question of improvements to the property providing the applicant defendant tenant with right to continue possession. I completely reject that assertion. It is wrong in law. Improvements do not count when it comes to the consideration of ejectment.' The Defendants are in occupation of the premises since November, 2011 and has not paid rent for more than 3 months. No evidence of payment was produced by the Defendants and the notice to quit was issued less than one month after the entering in to the possession by the Defendants. The reasons given for the notice to quit is damage to the premises and the failure to deposit the bond. The Defendants deny the said reasons, but there is no need of proof of the reason required since the tenancy agreement provides for termination and eviction after one month notice, without proof of any reason for doing so.
   

2. FACTS
   

2. The Plaintiff is the last registered proprietor of the Lot 4 on the deposited plan No 2150 comprised in certificate of title no 9122. The certified copy of the title is annexed marked 'A' to the affidavit in support.
   
3. The Defendant entered into a tenancy agreement for Flat 2 of the said premises on 21st November, 2011 and the said tenancy was entered on the "as –is" basis.
   
4. The said tenancy agreement stipulates that the tenant would deposit one month rent as a bond.
   
5. The Defendant was served a notice to quit on 12th December, 2011 granting one month time to vacate the premises, and in the said letter state that the Defendant has failed to provide bond and also caused damaged to the property.
   
6. The Defendant replied to the said letter through the present solicitors, and also stated that he would contest any attempt for eviction no improvements mentioned in the said letter.
   
7. The Defendant did not file the affidavit in opposition on the 16th March, 2012 and sought further time and I granted further 7 days to file and serve the affidavit in opposition and fixed the matter for hearing on 29th March, 2012.
   
8. Again, on 29th March, 2012 the counsel for the Defendant failed to file the affidavit in opposition, but said they can file it by next day. Though the counsel for the Plaintiff, vehemently objected to any further time being granted to file an affidavit in opposition, I ordered the affidavit in opposition filed, subjected to a wasted appearance cost.
   
9. The Defendant has filed the affidavit in opposition, but failed to pay the cost ordered and failed to appear at the hearing.
   
10. No appearance for the Defendant at the hearing, but since the Defendants have filed an affidavit in opposition I have considered the affidavit in opposition for the ruling. In any event since no oral evidence is required and the hearing is confined to the affidavit evidence there is no prejudice to the Defendant since I have considered their contention. Neither party submitted any legal submissions on this matter. The Defendants were granted ample opportunity, despite the vehement objections by the counsel for the Plaintiff to submit the affidavit in opposition and or to make oral and or written submissions at the hearing. Their failure to appear and make oral and or written submissions should not be a reason for any further adjournments, but I have decided to consider the affidavit in opposition since that is all what they could rely on as evidence.
    
11. In the affidavit in opposition the Defendants are admitting they are tenants and the entering in to the tenancy agreement
    

100. ANALYSIS
     

12. The Plaintiff has proved that it is the last registered proprietor of the property, through the certificate of title annexed as 'A' to the affidavit in opposition. The Defendants in the affidavit in opposition do not challenge it and has corroborated it by the admission of the tenancy agreement.
    
13. The agreement in clause 3.1 grants either party to terminate the tenancy agreement after a notice of one calendar month which the Plaintiff has done by its letter dated 12th December, 2011.
    

Further in clause 1.13 of the said tenancy agreement state as follows

'1.13 Re- Entry

To permit the Landlord to re-enter the rented premises and determine the tenancy, but without prejudice to any rights and remedies of the Landlord, if the rent or any part thereof is in arrears for at last seven (7) days after it has become due (whether legally demanded or not), or in the event of a breach by the Tenant or any of the agreements on the part of the Tenant, or if the rented premises are left vacant or unoccupied for more than seven (7) days (without the prior written consent of the Landlord).'

14. The said tenancy agreement is annexed as 'B' to the affidavit in support and there is no denial of that fact in the affidavit in opposition.
    
15. Since the Plaintiff has proved the requirement in terms of the Section 171 of the Land Transfer Act the burden shift to the Defendants to establish a right to possession as required in Section 172 of the Land Transfer Act.
    

Section 172 of the Land Transfer Act 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;"

16. In Morris Hedstrom Limited –v- Liaquat Ali CA No: 153/87, the Supreme Court of Fiji described the scope of the said provision contained in section 172. The Defendants had entered in to a tenancy agreement and the clause 1.6 of the said tenancy agreement state that 'The Tenant acknowledges and accepts the interior and exterior of the rented premises and chattels on and 'as –is' basis.'
    
17. The contention in the affidavit in opposition is that the place was not suitable for occupation, hence some necessary improvements were done. The alleged improvements are contained in paragraph 29 of the affidavit in opposition and they are for curtains, a carpet, and cost of cleaning totaling to $2,700.
    
18. No evidence of such improvements was annexed to the said affidavit in opposition, and even proved would not establish a right to remain in the property. In Ram Chand v Ram Chander Court of Appeal No ABU 0021.2002s and 002.200s Fiji court of Appeal observed the carrying out of improvements would not grant the tenant a right to continue occupation.
    
19. Bhaskar and Khan, Civil Action 43 of 2002 Labasa Registry, and the Hamid v Prasad, Civil Action No 31 of 2002 Suva Registry were referred by the Winter J in the decision that dealt with improvements done by the tenants in Chand v Ali [2005] FJHC 247 stated as follows
    

'In so far as the question of improvements to the property providing the applicant defendant tenant with a right to continue possession. I completely reject that assertion. It is wrong law. Improvements do not count when it comes to the consideration of ejectment.' (emphasis is added)

In the said judgment it was further stated

'Counsel then points out that it is the landlord who has been prejudiced throughout the course of his entire proceeding. The landlord has been kept out of rent for well over a year. The landlord is entitled to possession, any further delay in providing the landlord with possession will aggravate the obvious prejudice that he had already suffered.'

And further stated in the analysis of law as follows

'Any prejudice to him form the improvements to the land he has made can be dealt by way a separate action against the landlord seeking compensation for those improvements. I do not see that the subject matter of the appeal will be rendered nugatory. The improvements don't justify possession.' (emphasis is added).

The Court of Appeal as well as High Court unreservedly held that a tenant do not have a right to possession based on improvements. The Defendants were served with notice to quit, less than one month after the entering in to the agreement of tenancy.

20. 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 Defendants 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)

21. The affidavit in opposition is alleging that despite the tenancy agreement, there was an oral agreement deviating form the tenancy agreement. This cannot be accepted as there is no evidence to substantiate it.
    
22. It is pertinent to note that while replying to the notice to quit, through the same solicitor firm who filed the affidavit in opposition, nothing was mentioned about any improvements and or of the alleged 'oral agreement' with the landlord. So, clearly the said consent of the landlord is an after thought.
    
23. This is clearly an after thought, and in the analysis of the evidence before me should be rejected in the application of the accepted evaluation of the affidavit evidence before me.
    
24. The said allegation of improvement, cannot hold water for any right to possession. The Defendant has entered the premises 'as-is' basis, and any cleaning or curtaining even proved cannot be claimed from the landlord.
    
25. It is the general rule, however, is that "liabilities are not to be forced upon people behind their backs" and four conditions must be satisfied before proprietary estoppel applies and there is no mistaken belief as to the ownership of the property and the Defendants cannot claim proprietary estoppel.
    
26. The tenancy agreement was entered in to on 21st November, 2011 and the notice to quit was issued on 12th December, 2011
    
27. There is no evidence of any payment of money as a bond to the said agreement. The Plaintiff sate that this was not paid and the Defendants say that they had paid the said 'bond'. Even assuming that the Defendants have paid one month rent as bond, it is clear that to the end of March, 2012 the tenants have enjoyed occupation of the Flat 2 without a payment of monthly rentals for more than three months. This is clearly an abuse of process to remain in possession as this proceeding will only confine to eviction and for any damage or rent a separate claim is needed.
    

4. CONCLUSION
   

28. The Plaintiff has failed to establish a right to remain in possession of the premises described in the summons for ejectment filed on 19th January, 2012. The alleged cost for a carpet, curtaining and cleaning cannot by any stretch of imagination create a right to remain possession of the premises without payment of rent as the tenancy agreement was entered on 'as-is' basis. If the place was uninhabitable, the Defendant would have rejected the premises, without entering in to a tenancy agreement, on the 'as-is' basis. Now the Defendants cannot complain the status of the premises and the allegation of subsequent oral agreement cannot be accepted in the analysis as to spontaneity of it. In the reply to the quit notice, the Defendant has not alleged any deviation of tenancy agreement thorough an oral agreement. There was no indication of alleged improvements prior to the affidavit in opposition and the affidavit does not annex documentary proof to such improvements. Considering the time of the quit notice and alleged improvement, the Defendant should have been able to provide evidence of such expenses. The tenancy was entered in to on 21st November, 2011 and the notice to quit was as early as 12th December, 2011, which is less than one month after the creation of tenancy. The alleged oral agreement and the improvements to the property are not established and even established would not create a right to possession in the premises without payment of rent indefinitely. The Defendants are clearly abusing the process of the court to remain in possession and should be evicted immediately and the Defendants are ordered to pay a cost of $1,000 as the cost of this application assessed summarily. (this cost is excluding the wasted appearance cost of $300 that I ordered at the previous hearing date since the defendant has failed to file an affidavit in opposition and I had to vacate the hearing in order to accommodate the Defendant's counsel to file an affidavit in opposition)
    

5. FINAL ORDERS
   

1. The Plaintiff is granted vacant possession of the premises described in the summons for eviction filed on 19th January, 2012 immediately.
   
2. Cost of this application is assessed summarily at $1,000. (excluding the wasted appearance cost of $300 which I have already made)
   

100. The cost to be paid within 21 days from today.
     

Dated at Suva this 04th day of April, 2012.

.................................................
Mr. Deepthi Amaratunga
Master of the High Court
Suva