Homelco Ltd v Kumar [2012] FJHC 4; HBC197.2011 (16 January 2012)

IN THE HIGH COURT OF FIJI
(CENTRAL DIVISION) AT SUVA
EVICTION PROCEEDINGS

Civil Action No. HBC 197 of 2011

IN THE MATTER of Section 169 of the LAND TRANSFER ACT 1971, CAP. 131

BETWEEN:

HOMELCO LIMITED, a limited liability company having its registered office at 60-62 Amy Street, Toorak Road, Suva in the Republic of Fiji.
PLAINTIFF

AND:

NOLEEN KUMAR and BASIL KUMAR both of 7 and 9 Laucala Bay Road, Flagstaff, Suva in the Republic of Fiji.
DEFENDANTS

BEFORE: Master Deepthi Amaratunga

COUNSEL: Ms. B. Narayan for the Plaintiff
Defendant in person.

Date of Hearing: 15th November, 2011
Date of Ruling: 16th January, 2012

RULING

1. INTRODUCTION
   

1. The application is made in terms of Section 169 of Land Transfer Act. Plaintiff is the last registered lessee of the Protected Lease in terms of the Section 13 of the Crown Lands Ordinance (Chap132). The Plaintiff has not obtained the consent of the director of lands to institute the action. The land was meant for residential purpose according to the crown lease. The lessee has sub let the premises in contravention of the lease agreement. The Defendant alleges improvements to the property and also states that there was an implied agreement between him and the main share holder of plaintiff to purchase the said lease. No evidence of such improvements or any implied agreement proved. Failed to show a right to remain in the premises. The Plaintiff could not rely on the breach of the conditions in the crown lease to show an arguable case. The conditions in the crown lease stipulate that breach of any term or condition of the lease will result cancellation and repossession by the lessor or the imposition of penal rent. It is clear indication that any breach will not result in cancellation of the lease ipso facto. In any event if the lease is cancelled, the Defendants who had come as licencee cannot rely on any such breach to remain in possession.
   

2. FACTS
   

2. The Plaintiff is a Company which is the last registered lessee of the crown lease (Protected Lease) No 1767. The Plaintiff has produced a copy of the said certificate and the Defendants do not challenge it.
   
3. The Defendants do not challenge the position of the Plaintiff, but state that their position is that the Plaintiff has allowed the Defendant to carry out improvements to the said property.
   
4. The Defendants also stated that they had carried out substantial improvements to the property and has made it 'livable', but no such evidence was produced in the affidavit in opposition.
   
5. The Defendants admit that they were tenants of the premises and has also admitted that they had failed to pay rents on time, but state that arrears were always settled and that delay was due to nature of his business that he carried out from the said premises.
   
6. Defendants also state that Plaintiff has violated the conditions of the Protected Lease and they cannot institute action for ejectment in the summary manner. They also state that consent of the Director of Lands has also not been obtained for this action and should be dismissed in limine.
   
7. The Defendants have failed to produce any documentary evidence to prove any improvements or of alleged understanding with the main shareholder of the Plaintiff Company to purchase the rights of the Plaintiff.
   

100. LAW AND ANALYSIS
     

8. 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 arrear 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 been 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)

9. The Plaintiff has instituted this action in terms of Section 169(a) as the last registered proprietor of the land as it is not the lessor as required in both Section 169(b) and 169(c) of the Land Transfer Act.
   
10. 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)

11. What the Defendant has to show is not an absolute right but a right or supporting an arguable case for such a right to remain in the property.
    
12. The word "proprietor" means the registered proprietor of land, or of any estate or interest therein in terms of the interpretation Section 2 of the Land Transfer Ordinance. The said interpretation does not help much as in the interpretation of word 'proprietor' again uses the same word in the interpretation with some additional descriptions, but it is clear that the lease hold right that the Plaintiff obtained from the crown lease can be included in the category of ' interest' in the land that has been registered. The Plaintiff has a registered leasehold right to the property. The lease is a protected lease in terms of Sction13 of the Crown Lands Ordinance and states as follows
    

13.-(1) whenever in any lease under this Act there has been inserted the following clause:-

"This lease is a protected lease under the provisions of the Crown Lands Act"

(hereinafter called a protected lease) it shall not be lawful for the lessee thereof to alienate or deal with the land comprised in the lease of any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever, nor to mortgage, charge or pledge the same, without the written consent of the Director of Lands first had and obtained, nor, except at the suit or with the written consent of the Director of Lands, shall any such lease be dealt with by any court of law or under the process of any court of law, nor, without such consent as aforesaid, shall the Registrar of Titles register any caveat affecting such lease.

Any sale, transfer, sublease, assignment, mortgage or other alienation or dealing effected without such consent shall be null and void.

(2) On the death of the lessee of any protected lease his executors or administrators may, subject to the consent of the Director of Lands as above provided, assign such lease.

(3) Any lessee aggrieved by the refusal of the Director of Lands to give any consent required by this section may appeal to the Minister within fourteen days after being notified of such refusal. Every such appeal shall be in writing and shall be lodged with the Director of Lands.

(4) Any consent required by this section may be given in writing by any officer or officers, either solely or jointly, authorised in that behalf by the Director of Lands by notice published in the Gazette. The provisions of subsection (3) shall apply to the refusal of any such officer or officers to give any such consent. (Inserted by 21 of 1959, s. 2)

(5) For the purposes of this section "lease" includes a sublease and "lessee" includes a sublessee. (emphasis is added)

13. The conditions of the lease are contained in the Crown Lease No 1767 that is annexed as 'A2' and it reiterates the above mentioned conditions laid down in the Crown Lands Ordinance and clause 2 of the said covenants reads as follows
    

'2. The lessee shall not transfer, sublet, assign or part with the possession of the demised land or any part thereof without the written consent of the lessor first had and obtained.'

14. The Defendants allege that Plaintiff has breached the said condition of the lease and cannot institute action in terms of Section 169 for summary procedure to evict the Defendants. No case authority for supporting such contention is submitted and the Defendants who had entered the premises as tenants of the Plaintiff are estopped from denying the rights of the Plaintiff to evict them. In any event if there is any dealing with land in contravention of the Section 13 stated above, such dealing will be null and void, and Defendant cannot rely on such a breach to obtain a right to remain in possession of the said land.
    
15. It is also noteworthy that clause 17 of the said lease state as follows
    

'Default by the lessee in the fulfillment of any covenant or condition expressed or implied therein shall render this lease liable to cancellation by re-entry and possession by the lessor or to the imposition of a peal rent.'

16. So, any violation of covenants contained in the lese ipso facto will not made the lease void or even liable for cancellation. It is clear that it only makes it optional for liable for cancellation and re-entry or by imposition of penal rent. These are avenues that are open for the Director of Lands to take and should not be a reason for refusal to evict a person who is in possession of the land without legal authority, in terms of Section 169 of Land Transfer Act. The laws relating to the eviction and its scope are well settled in this field of law in Fiji as well as in most common law countries and no such authority was submitted to me that supports the contention of the Defendants. It is also noted that Defendants who entered the premises as tenants are estopped from denying the Plaintiff's rights as the lessee and in any event if the lease is void and or cancelled clearly there is no right to possession that is left for the Defendants.
    
17. The Plaintiff has produced a letter dated 12th April, 2011 requesting the 1st named Defendant to vacate the premises by 15th May, 2011. The Defendants deny the receipt of this letter, but admit the subsequent letter of 10th June, 2011 which again requested the Defendants to vacate the premises within 7 days. Though this letter has fallen short of the statutory requirement of at least 30 days in terms of the Section 89 of the Property Law, it is clear that Defendants have conveniently refused to accept the receipt of the earlier letter that granted more than 30 days to vacate the premises. I do not accept the Defendants contention that they did not receive this earlier letter dated 12th April, 2011 as the second letter has also mentioned about the earlier letter and if they did not receive such letter they should have replied to this letter stating that they did not receive such letter. The Defendants are engaged in the business of estate agency and should be reasonably aware of the rights and obligations of a tenant and the consequence of a quit notice and its legal implications. So, if they did not receive the earlier letter that clearly gave them one month notice they should have immediately replied to letter dated 10th June, 2011 which specifically stated in the second paragraph as follows
    

'We refer to our client's Notice to you dated 12th of April 2011 to vacate the premises by 15th of May, 2011.'

18. The contents of this letter was not denied and no reply to this letter was produced before me. This clearly shows the Defendants have in fact received the letter of 12th April, 2011, though now they deny the receipt of that due to the insufficiency of notice in the letter dated 10th June, 2011.
    
19. It is clear that Defendants could not produce any evidence to support improvements to the said property except the said averment in the affidavit in opposition. They could not find any written authority to do such improvements and could not produce a single letter supporting the said contention. The Defendants also sate that such improvements were done on the agreement that Plaintiff would sell its rights in the premises to the Defendants. There were no written correspondence in relation to such an agreement or even there was no mentioning of such thing before me.
    
20. The Plaintiff vehemently denies existence of any such agreement and Defendant being an estate agent who ought to know the rights and obligations over land and as a person who ought to know about value of written documentary proof should have obtained such a documentary proof in order to establish any rights over the said premises.
    
21. The contention of the Defendants cannot be accepted on the available material before me that they have done significant improvements .Even if one considers the Defendants contention it is clear that they cannot claim proprietary estoppel as there was no mistaken belief of ownership of a crown lease and any breach of crown lease will also be against equity as it will result in Plaintiff violating a condition or a terms in the lease.
    
22. The affidavit in opposition was filled without any annexed documents and they were granted ample opportunity to do so. Though the law requires the Defendant to show cause on the very first day when they attend the court, these defendants were granted several opportunities to file an affidavit in opposition and they have done it without any supporting documents. So, the Defendants have not shown any arguable defence or a right to remain possession.
    

4. CONCLUSION
   

23. The Defendants have entered the premises as licensees and has also paid monthly rent. There is no written tenancy agreement between the parties. The Defendants also admit delaying and defaulting some of the rentals earlier and also has not produced any evidence of any payments to contradict the arrears alleged by the Plaintiff. The Plaintiff has sent a quit notice allowing one moth for the Defendants to vacate the premises on 12th April, 2011. The Defendants have failed to vacate the premises and they are also estopped from denying the Plaintiff's right to evict them as they have accepted the Plaintiff's rights and have also paid the rent. There is no evidence before me of any substantial improvements done by the Defendants, even if so that would not by itself qualify them to remain in the property considering the circumstances of the case as it is a protected lease. If the Defendants have done substantial improvements to the property they can pursue a claim for that in a separate action. The Defendants have not shown an arguable defence or right to remain in possession.
    

5. FINAL ORDERS
   

1. The Plaintiff is granted possession of the premises immediately.
   
2. The Plaintiff is also granted a cost of $1,000 assessed summarily to be paid by the Defendants jointly and or severally to the Plaintiff within 21 days.
   

Dated at Suva this 16th day of January, 2012.

Mr. Deepthi Amaratunga
Master of the High Court
Suva