Wati v Bogivitu [2013] FJHC 96; Civil Action 51.2012 (8 March 2013)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. 51 of 2012

BETWEEN:

PRABHA WATI and PRABHA WATI
PLAINTIFFS

AND:

LOTAWA BOGIVITU
DEFENDANT

Counsel : Mr.A. Sen for Plaintiff
Defendant in Person
Hearing : 08th March, 2013
Ruling : 08th March, 2013

JUDGEMENT

1. Summons for ejectment filed by the Plaintiffs under Section 169 of the Land Transfer Act 1971.

2. The said summons supported by the Affidavit sworn by Jitendra Prasad authorised agent of the Plaintiffs presently living in Canada.

3. The Tenancy Agreement was executed by the Defendant as the Tenant and Jitendra Prasad as the Land Lord on 27th of September 2010 for a period of 12 months. [Annexure C to the Affidavit]

4. By the Agreement Annexed to the Affidavit Marked 'C' the Defendant had agreed to pay monthly Rental of $300 per month in advance to Mr. Jitendra Prasad Land Lord.

5. Option of Renewal of the lease is provided in the Tenancy Agreement Marked 'C'.

6. As at the date of the summons there was $2,100 Rent in arrears which was due to the Plaintiffs.

7. On 6th June 2012 the Defendant was advised of his arrears and a distress of rent was levied. [Annexure Marked D].

8. It was alleged the defendant had used force, threats of violence and has committed Criminal Offence by refusing plaintiff's to levy the distress and remaining in possession.

9. The Defendant had filed his Affidavit on 26/9/2012 and appeared in person.

10. By the Affidavit in Opposition the Defendant averred:

(a) He had disputed that Jitendra Prasad failed to provide proof he is the agent of the Plaintiffs.

(b) The Defendant had not disputed entering into the Tenancy Agreement and he had agreed to pay monthly rental of $300.00.

(c ) The Defendant had produce purchase receipts dated 24/3/11 (1 receipt), 18/4/11 (3 receipts) totaling to the value of $2333.20 Claiming that the goods and stocks purchased were damaged and loss incurred.

(d) The defendant averred that the distress rent notice was sent by Jitendra Prasad, was undated and he did not carry any authority to levy any distress rent.

(e) The Defendant also alleged the Plaintiffs had not acted according to the terms of the Rent Agreement.

(f) The Defendant further averred that by annexure D to his affidavit agent had failed to obtain consent from the I Taukei Lands Trust Board and the Board's letter dated 24/9/2012 addressed to the Plaintiff's copied to the Defendant was marked G and annexed to the Affidavit.

11. The Plaintiff filed an Affidavit on 23/10/2012 in reply to the Affidavit of the Defendant and stated interalia.

12. (a) It was averred that the Defendant cannot claim on the matter raised in 7(a) of the Defendants Affidavit because of his behavior and he was staying in the premises without paying rent.
    

(b) The matters referred in paragraph 7(b)-(e) are irrelevant since he continues to occupy the premises claiming that building is not suitable for occupation.

(c) The Defendant himself admit the occupancy is illegal and he continues to occupy the premises and he is a trespasser.

13. When the matter was taken up for hearing on 8/3/2013 Plaintiffs Counsel and the Defendant (inperson) made their submissions.

14. The Plaintiffs counsel Mr. Sen submitted he relies on the Affidavit and sought orders as per summons.

15. The Defendant made his submissions and stated there was no consent by the ITaukei Land Trust Board to sublease the premises. He stated Plaintiff's had no right to file this action and recovering rent from him is illegal. I conclude that the Defendant cannot seek protection under the guise of the issue between ITaukei Land Trust Board and the Plaintiffs because his agreement is with the Plaintiffs. Further if he says it's illegal tenancy his occupancy too become illegal. The Defendants submission is baseless and without any merits and he fails.

16. The Defendant's submission that he is not liable to pay rent in arrears since the premises is rented to him illegally cannot be accepted. Even if the letter marked as Annexure 'G' is a letter by ITaukei to regularize the tenancies by obtaining the consent from the Board. That is a matter between the Plaintiff and the Board. It is also noted this letter was dated 24th September 2012 and the Defendant's Tenancy expired 27/09/2010 and there is no basis for the submission of the Defendant.

17. The Defendant further submitted that to allow him one months time to vacate the premises and Plaintiff's should'nt be entitled to recover the rent in arrears.

My conclusions:

(a) The Defendant was occupying the premises without paying rent and rent is in arrears.

(b) The Defendant's position that Jitendra Prasad is not authorized agent of the Plaintiff do not carry any merit for the reason the Defendant had originally accepted Jitendra Prasad as the Land Lord who acted on behalf of the Plaintiffs. Now he cannot claim Prasad is not the authorized agent.

(c) The Defendant himself admitted that distress for Rent Act was delivered to him which is undated and thereafter the Solicitors sent notice on 6th June 2012 and the Defendant had not taken any steps to remedy the situation but continued occupy the premises without paying rent to date and I conclude he is unauthorized occupant and he has no legal right to stay in the premises.

(d) The Defendant also claimed damages caused to his stocks because of rain due to unhabitual nature of the premises. The receipts for purchase of the stocks are dated 26/3/2011 and 18/4/2011 and he had not established the stocks and goods were damaged. Further at the time there stocks were purchased there was no authority or consent from the Plaintiff to the Defendant to occupy the premises. As the Defendant claims the premises was in the same state of repairs since 27th September 2010 why he purchased stocks in April 2012 and stored in the premises which creates doubt with regard to bonafides of his claim. The Defendant should bear loss for his own fault.

Having concluded as above I order:

(a) That the Defendant deliver immediate vacant possession of the said premises to the Plaintiff but execution to be stayed for 14 days from the date of this Judgement.

(b) To pay summarily assessed costs of $2000.00 within 14 days of this Judgement.

CHANDRASIRI KOTIGALAGE
JUDGE

08TH March, 2013.