Raniga v Nisha [2012] FJHC 1071; HBC046.2012 (10 May 2012)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

HBC 046. of 2012L

BETWEEN :

HIMMATLAL RANIGA and ASERI NATOMAboth of Malomalo.
PLAINTIFFS

AND:

NAZMEEN NISHA c/- Pot Luck, Sigatoka.
DEFENDANT

Before : Master Anare Tuilevuka.
Appearances : Vasantika Patel, Barristers &Solicitors for the Plaintiffs.

Mr. Sahu Khan on instructions from M.A.Khan Esquire for the Defendant.
Date of Ruling : Thursday 10 May 2012.

RULING
BACKGROUND

[1]. Himmatlal Raniga and Aseri Natoma are husband and wife. They are the registered proprietors[1] of a freehold commercial lot comprised in Certificate of Title No. 10281 known as "Sasolo" and "Naloba" (part of) and being Lot 51 on DP No. 2456 ("Lot 51"). Lot 51 is situated in Sigatoka Town. Erected on Lot 51 is a commercial building. On 14 October 2008, Raniga and Natoma entered into an agreement with one Nazmeen Nisha, the defendant, for the lease of Lot 51. This lease commenced on 01 October 2008 and expired on 31 October 2011.Nisha continues to operate her business on Lot 51 to this day.According to Raniga and Natoma, theyhad only allowed Nisha to stay on Lot 51 up to 31 January 2012 because they had entered into another agreement with Tappoos Limited to lease Lot 51 from 31 December 2012. According to Nisha, the reason she continues to occupy Lot 51 is because Raniga and Natoma had verbally agreed to sell the property to her. It appears that since the expiry of the commercial lease on 31 October 2011, Nisha has not paid any rent - nor is any rent being demanded of her. Nisha is aware that Raniga and Natoma have since entered into another commercial agreement to lease Lot 51 to Tappoos. Tappoos in fact was to commence its business on the property in January 2012. Obviously, Nisha is an obstruction to the company's plans on the premises.

[2]. On 09 February 2012, Raniga and Natoma served Nisha with a Notice to Quit under section 169 of the Land Transfer Act (Cap 131). Nisha has remained in possession of the premises. Raniga and Natoma nowseek an Order under section 169 against Nisha to show cause why she should not give up immediate vacant possession of Lot 51.

NISHA'S CASE

[3]. In her affidavit to show cause, Nisha deposes as follows:

..part of the Agreement was that if the tenant holds on to the premises at the end of the leasehold estate the term will be extended for as long as the tenant holds over.

.. the Agreement also implies the possibility of getting a renewal for further 2 years at the expiration of the lease, subject to notification for renewal.

..on a number of occasions prior to the end of the Agreement, the first named Plaintiff have made representation to me and my husband there willingness to sell the premise to us, and for that reason I didn't submit to the Plaintiff any notification for renewal.

..I have also indicated to the Plaintiff my willingness to purchase the said premises.

..however, on October 2011, a verbal Agreement was reached with the Plaintiff, and the Commercial Agreement was extended for another three months in which the Plaintiff also made an assurance that the property will be sold.

.. I have made improvements on the property which include fittings and lighting and that in reliance of the representation made by the Plaintiff, I did not make any arrangement for a new space to move my stock within Sigatoka.

[I am] surprised that the said premise is now being leased out to Tappoo Limited for the term of 12 years.

[I have] been misled to a belief that the said premises will be sold to [me].

-that the 6 months' time sought by my lawyer was based on the above clause of the schedule.

The Plaintiff is wrong in entering into another Agreement when they have indicated to us their intention of selling the property to us.

..since I have relied on the assurance given by the Plaintiff, I have now faced with disadvantage in trying to locate a new space to move my stock into within Sigatoka Town.

That in the circumstances the Defendant wish to state that the Plaintiff is stopped from bringing such action under Section 169 of the Land Transfer Act; therefore, the Plaintiff's application should be struck out with costs.

ANALYSIS

[4]. As registered proprietors, Raniga and Natomahave a prima facie legal right to immediate possession.The onus therefore is on Nisha to convince this court that she has an arguable case of some right to possession which would preclude the granting of an order for possession in favour of Raniga and Natoma under section 169 (see Morris Hedstrom Limited v Liaquat Ali Action No. 153/87 at page 2). All she need show

[5]. Nisha's right to possession originally derived from the fixed term commercial lease that she had signed with Raniga and Natoma. When that lease expired, so did her entitlement to possession. She must then either vacate the property or renew the lease for another term. Any post-lease right to possession will depend on what post-lease arrangement she may have with the plaintiffs.

ANY POST–LEASE ARRANAGEMENT BETWEEN NISHA & THE PLAINTIFFS?

[6]. Nisha had an arrangement with the plaintiffs to remain on the property until 31 January 2012. There is no evidence before me of any informal arrangement to stay past 31 January 2012.

[7]. Had the plaintiffs been demanding and accepting rent from her after the expiration of the lease, an issue might be raised as to whether the Notice to Quit has thereby been waived. But there is no evidence before me of any such arrangement.

[8]. In fact, if Nisha was paying rent,section 89 of the Property Law Act would apply. This section concerns situations where there is a "tenancy of no fixed duration" between the parties in respect of which rent is being paid periodically – and where there is no express agreement in place. Again, because there is no evidence of any rent being paid, I am not prepared to presume that a tenancy of no fixed duration exists between the parties – let alone – a tenancy of any other sort. Hence – the principles which Master Amratunga applied in Wati v Channan [2011] FJHC 464; HBC 71.2011 (23 August 2011) which Khan & Company relies on - are not applicable in the case before me.

[9]. Nisha argues that she has a right to have the lease extended for as long as she holds over.Clause 2 of the Agreement states as follows:

If the tenant holds over....at the end of the term of the leasehold estate the term will be extended for as long as the tenant holds over and the expression "the lease" will include the leasehold estate during the holding over period.

[10]. The above clause merely reflects what section 89 of the Property Law Act states. A holdover tenantas such would still be subject to a Notice to Quit both under section 89(2)(b) and under section 169 of the Land Transfer Act (as per Master Amratunga in Wati v Channan supra).

[11]. Having said that, I see that M.A Khan is attacking the validity of the Notice to Quit in this case for non-compliance with the one month period prescribed under section 89.

[12]. But this argument must fail because it presupposes that Nisha is a "holdover tenant" – or as Ms. Patel puts it – it presupposes that there is a "tenancy"of no fixed duration in place – which – neither is the case. I say neither is the case for the simple reason that there is no post-lease rent being paid. There was no need therefore in this case for the Notice to Quit to comply with section 89.

[13]. Nisha also deposes in her affidavit that the Agreement implies the possibility of a renewal for further 2 years at the expiration of the lease, subject to notification for renewal. She then states that the reason she did not give such notification was because the plaintiffshad approached her about selling the property to her.This is denied by the plaintiffs.

[14]. I see no reason to delve into this in light of Nisha's own admission that she has not complied with the requisite notice of renewal to trigger her right to a further 2 year extension of the lease – assuming the lease does really contain such a provision (which from my cursory glance at the lease, is not the case).

[15]. Lastly, even if the plaintiffs had verbally indicated to Nisha their willingness to sell the property to her, there is no written memorandum or note thereof signed by the plaintiffs such as to tie them down to an obligation to sell the property to Nisha.Hence, whatever hope(s) and expectation(s) that Nisha might have entertained from that informal discussion, cannot even remotely justify her continued possession.

ORDERS

[16]. The defendant has not convinced that she has an arguable case to remain in possession. I grant Order in Terms of the application. I also award costs to the plaintiffs in the sum of one thousand seven hundred and fifty dollars ($1,750-00) considering that Ms. Patel for the plaintiffs had first formally proved this case before me on 07 May 2012 on the appointed date of hearing but had to re-appear before me the next day on 08 May 2012 on an application by the defendant to set aside and stay the Orders I had made after formal proof on 07 May 2012.

.....................................
Master Anare Tuilevuka

At Lautoka
10 May 2012.

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^[1]Certified True Copy of the Certificate of Title is exhibited in the Affidavit in Support of Himmatlal Raniga.