Sigatoka Club v Bironda Fiji Ltd (trading as True Blue Hotel) [2021] FJHC 421; HBC78.2020 (9 April 2021)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC 78 of 2020

IN THE MATTER of an application Under Section 169 of the Land Transfer Act for an order for immediate vacant possession.

BETWEEN : SIGATOKA CLUB
PLAINTIFF

AND : BIRONDA FIJI LIMITED T/A TRUE BLUE

HOTEL
DEFENDANT

APPEARANCES/REPRESENTATION
PLAINTIFF : Mr N Sharma [Nilesh Sharma Lawyers]

DEFENDANT : Mr I Ralovo [Reddy & Nandan Lawyers]

RULING BY : Acting Master Ms Vandhana Lal

DELIVERED ON : 09 April 2021

JUDGMENT

Application

1. The Plaintiff who is named as “Sigatoka Club a duly registered club under the Registration of Clubs Act with their office situated at Lot 3 and 4 Queens Road, Sigatoka” has initiated the current proceedings against Bironda Fiji Limited trading as True Blue Hotel seeking orders for vacant possession of premises on the 1^st and 2^nd floor situated on the land comprised and described on Certificate of Title No. 24715 being Lots 3 and 4 on DP No. 6271 situated in the District of Sigatoka on the Island of Viti Levu.
2. The said application is made pursuant to Section 169 of the Land Transfer Act and is supported by an affidavit of Dev Anand Sharma.
   
3. The Defendant who is opposing the application has filed an affidavit in opposition sworn by Shanil Naidu on 16^th March 2020.
   
4. The Plaintiff on 13^th May 2020 filed a reply to the Defendant’s affidavit.
   

Rights of the Deponent in making the two affidavits on behalf of the Plaintiff

5. The Defendant has challenged the rights of the deponent in making the two affidavits on behalf of the Plaintiff.
   
6. According to the Defendant, Dev Anand Sharma is not a proper office bearer of the Plaintiff. The correct trustees of the Plaintiff are Vijay Singh, Madan Sen and Niumai Togakai.
   

Dev Anand Sharma is a party to a pending proceeding where is it alleged that Dev Anand Sharma along with others are wrongly, illegally and in contravention of the Plaintiff’s Constitution holding themselves out to be the office bearers of the Plaintiff. Reference is made to High Court Civil Action HBC 85 of 2018.

7. Dev Anand Sharma maintains he is one of the current registered trustees and hence he can depose affidavit on behalf of the Plaintiff.
   

He has made reference to a Judgment delivered on 31^st March 2020 in Civil File HBC 85 of 2018.

8. I have obtained a copy of the said judgment which determined the Defendants (one of them being Dev Anand Sharma) inter-parte summons which sought following injunctive orders against Vijay Singh , Madan Sen, Niumai Togakai and Krishna Rattan Bhan:
   
   • (i) An interim injunction restraining the 2^nd and 3^rd Plaintiffs especially the said Vijay Singh Businessman, whether by themselves or through their servants and/ or agents or otherwise howsoever from hindering or interfering in any way with management , running, control and operations of the Sigatoka Club including the dealing of the Defendants with the Tenants on the property contained in Certificate of Title No. 24715 being Lots 4 and 4 on DP No. 6271 until determination of the within action or until further Orders or determination by this Honourable Court.
     
   • (ii) An interim injunction restraining the 2^nd and 3^rd Plaintiffs especially the said Vijay Singh, Businessman, whether by themselves or through their servants and/ or agents or otherwise howsoever from entering and/ or remaining on the premises of the Sigatoka Club contained in Certificate of Title No. 24715 being Lots 4 and 4 on DP No. 6271 until determination of the within action or until further Orders or determination by this Honourable Court.
     
   • (iii) An Order that the 2^nd and 3^rd Plaintiffs especially the said Vijay Singh, Businessman of Sigatoka return the keys of the Sigatoka Club House to the Defendants.
     
   • (iv) That the Sigatoka Police Officers do act and render all assistance required by the Defendants if necessary in the enforcement of the Orders.
     
9. According to Amratunga J., the Plaintiffs had earlier sought restraining orders against the Defendants (include Dev Anand Sharma who is the 2^nd Defendant) which was refused in a decision delivered on 28^th June 2018.
   

Amartunga J. went on to state that:

“14. The order of refusal of the Plaintiff’s motion filed on 27^th March 2018 was clear that officials appointed 28^th January 2018 should continue until further order of the court.

15. So, first and second Defendants, should function as trustees of the club until their status is determined through this action filed by Plaintiff, two years ago. ................. Instead of taking steps to proceed to hearing, Plaintiffs are disputing and obstructing trustees, in their work in the club.”
    

His Lordship went to state that the function of the trustees outlined in paragraph (a) (i) – (ii) of the final orders “are not limited but only to supplement and clarify the said duties of trustees”.

10. As per the judgment of 31^st March 2020 in HBC 875 of 2018, it is clear that Dev Anand Sharma along with Mark Frost, Biran Kumar and Sanjay Makanjee are trustees of the club and hence can take out current proceeding.
    

They are not estopped by the orders from initiating any proceedings for evictions against the tenants.

11. Furthermore Dev Anand Sharma along with Mark Frost have been allowed to function as trustees of the club until determination of Action HBC 85 of 2018.
    
12. For these reasons I will not allow the objection raised by the Defendant in that Dev Anand is not a proper office bearer of the Plaintiff.
    

Does the Plaintiff have locus to bring the proceedings under Section 169 of the Land Transfer Act?

13. Section 169 of the Land Transfer Act outlines who may initiate proceeding under the said provision and they are:
    
    1. the last registered proprietor of the land;
    2. a lessor with the 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 no sufficient distress found on the premises to countervail such rent and whether or not any previous demand has been made for the rent;
    100. a lessor against a lessee or tenant where a legal notice to quit has been given or the term of the lease has expired.”
         
14. There is no dispute that the Plaintiff is registered as the last proprietor of the subject land.
    

Description of the land and service of the summon - Section 170 of the Land Transfer Act

15. Section 170 of the Act reads:
    

The summons shall contain a description of the land and shall require the person summoned to appear at the court on a day not earlier than sixteen days after the service of the summons.

16. The property is described as follows:
    

“premises on the 1^st and 2^nd Floor situated on the land comprised and described on Certificate of Title No. 24715 being Lots 3 and 4 on DP No. 6271 situated in the District of Sigatoka on the island of Viti Levu”.

17. The copy of Certificate of Title annexed to the affidavit in support is for CT No. 24715 being Lots 3 and 4 on DP No. 6271 situated in the District of Sigatoka on the island of Viti Levu.
    
18. The call over date on the summon is for 19 March 2020. As per the affidavit of service filed on 13 March 2020, the originating summon with the affidavit in support was served on 03 March 2020.
    

The service of the summons is not clear 16 days but only 15 days.

19. The Plaintiff is one day short of clear 16 days service requirement under the law. However the Defendant has not raised any objections to service of the originating summons.
    

Has the Defendant established a right or title to remain in possession?

20. Section 172 of the Act reads:
    

“The person summoned may show cause why he or she refuses to give possession of such land and, if he or she 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......”

21. The Supreme Court in Morris Hedstrom Limited –v- Liaquat Ali a Supreme Court of Fiji, Action No. 153 of 1987 has stated:
    

“Under Section 172 the person summoned may show cause why he refused to give possession of the land and 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 Sec169&#/b>&#/b> proceprocedure. That isto s to say that final or incontrovertible proof of a right to remain in possession must be adduced. What is required at songibldence establishing a right or supportinorting an g an arguable case for such a right, must must be adduced.”

22. The Defendant on paragraph 7 of its affidavit in opposition states that it had executed a new lease agreement.
    
23. Annexure “SNZ” to the affidavit in opposition is copy of the lease agreement relied upon by the Defendant.
    
24. This was executed on 15^th January 2018 between Sigatoka Club and Bironda (Fiji) Limited which leased 1^st and 2^nd Floor to the Defendant located at Lot 3 and 4 Queens Road Sigatoka on DP No. 6271 on Certificate of Title 24715.
    

The landlord agreed to waive rental till 01^st July 2018 for monies owed by Sigatoka Club to the Defendant pursuant to a Lautoka High Court award for sum of $53,500.

The lease was signed by Vijay Singh on behalf of Sigatoka Club.

25. The Plaintiff states it had served a Notice to quit on the Defendant.
    

The notice marked as annexure “F” to the affidavit in support is dated 24^th January 2020.

In the said notice reference is made to a signed memorandum of agreement dated 06^th June 2003 according to which the tenancy agreement was for 12 years from 01^st November 2003.

26. On 06^th July 2017 the High Court of Fiji at Lautoka delivered a judgment that Bironda Fiji Limited trading as True Blue Hotel was entitled to the tenancy of the property till November 2018.
    
27. Sigatoka Club issued a letter dated 27^th August 2018 regarding “Notice of Non – Renewal”.
    
28. Via the letter of 24^th January 2020, the Defendant is given 30 days to vacate.
    
29. As per annexure “A” to the affidavit in support an extraordinary meeting was held on 28^th January 2018 removing Vijay Dayal, Niraj Kasi Prasad, and Bala Krishna Naidu on a vote of non-confidence. Krishna Rattan Bhan was also removed as the President.
    
30. From the evidence before this court the previous trustees Vijay Singh were not removed until the extraordinary meeting held on 28^th January 2018.
    
31. The lease agreement relied upon by the Defendant was executed on 15^th January 2018.
    
32. Furthermore the notice to quit relied upon by the Plaintiff is in relation to an earlier agreement which came to an end on November 2018.
    
33. If it were to be found that the lease executed on 15^th January 2018 was valid it is only proper the Plaintiff served a notice to quit terminating the said lease or any other lease held between the parties after November 2018.
    
34. I do not find this is a proper forum to determine whether or not the lease agreement entered on 15^th January 2018 is valid or not.
    
35. The court cannot accept that the agreement between the parties was terminated via the notice of 24^th January 2020.
    
36. Hence for these reasons I find the Defendant for now has shown sufficient cause for not giving possession.
    
37. However on the same note the Plaintiff is not prejudiced from issuing a proper notice for terminating the tenancy agreement dated 15 January 2018 and taking out proceedings for evictions in future.
    

Final Orders

38. The Plaintiff’s application is dismissed with no orders for costs.
    

..................................
Vandhana Lal [Ms]
Acting Master
At Suva.

09 April 2021

TO:

1. Suva High Civil File No. HBC 78 of 2020;
2. Nilesh Sharma Lawyers, Solicitors for the Plaintiff;
3. Reddy & Nandan Lawyers, Solicitors for the Defendants.