New World Ltd v Vanualevu Hardware (Fiji) Ltd [2022] FJHC 17; HBC45.2014 (21 January 2022)

IN THE HIGH COURT OF FIJI

AT LABASA

CIVIL JURISDICTION

CASE NUMBER: HBC 45 of 2014

BETWEEN: NEWWORLD LIMITED

PLAINTIFF

AND: VANUALEVU HARDWARE (FIJI) LIMITED

1^st DEFENDANT

AND: BASHIR KHAN

2^nd DEFENDANT

Appearances: Mr. V. Sharma and Ms. N. Samantha for the Plaintiff.

Mr. A.K. Singh for the Defendants.

Date/Place of Judgment: Friday 21 January 2022 at Suva.

Coram: Hon. Madam Justice Anjala Wati.

_____________________________________________________________________________________

JUDGMENT

1. Catchwords:
   

Landlord and Tenant – Leasing Agreement – Can an unsigned document be treated as a leasing agreement creating rights –Breach of s. 59 of Indemnity, Guarantee and Bailment Act and whether any rights can be asserted on a document breaching the law - whether there is evidence to establish damages done to property either by landlord or the tenant causing loss to each of them – whether there is evidence to substantiate a claim for breach of court orders by landlord – what is the proper rent that ought to be paid by tenant for the period of occupation without a leasing agreement – whether claims for rental arrears can be duplicated in this proceeding when an earlier action is live and pending – parties to follow the provision of contract if it stipulates how the dispute on rent is to be settled.

2. Legislation:
   1. Fijian Competition and Consumer Commission Act 2010 (“CCCA”).
   2. Indemnity, Guarantee and Bailment Act 1881: s. 59.

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1. Plaintiff’s Claim
   

1. The plaintiff and the defendants have been in a tenancy relationship since 1991. The plaintiff has been operating a Supermarket from the premises let out to it since 1991. The 1^st defendant is the registered proprietor of the subject property which was tenanted to the plaintiff. The 2^nd defendant Bashir Khan is the Director of the 1^st defendant company.
   
2. There is a history of disputes between the parties. I will not go into all of it. However, it is important for this proceedings to state that the last legally binding leasing agreement between them was on 10 August 2006. There are pending litigation between the parties arising out of that agreement. The pending litigation in respect of that agreement are Labasa High Court Civil Action Numbers 12 and 30 of 2011. The actions were consolidated due to the similar nature of orders sought by the parties.
   
3. The 10 August 2006 agreement was for a period of 3 years with a provision for “option for renewal” for a further term of 5 years from the expiration of the term. Under that agreement the plaintiff claimed that the tenancy was renewed for a further term of 5 years as it had exercised the option for renewal. The defendants refuted this and said that the plaintiff did not exercise its option for renewal and as such the agreement expired in August 2009.
   
4. Irrespective of whether the plaintiff exercised its option for renewal under the 10 August 2006 agreement, the entire term of the agreement expired on 31 August 2014. There was no further provision for renewal under the 2006 agreement.
   
5. It is very important that I outline the orders sought in the two actions arising out of the 2006 agreement. Before I do that, I must say that the actions are still pending and lying in the system without being determined. I fail to see why the matter was not prosecuted and that the same issue in the consolidated actions are now part of the defendant’s counter-claim in this action. Duplicity of claims are an abuse of the process of the court and it is the duty of the parties to ensure that there are not multiple litigations in respect of the one and the same claim.
   
6. By the amended statement of claim in HBC 12 of 2011, the plaintiff sought against the defendants the following orders:
   
   1. A declaration that the plaintiff has validly exercised its option to renew the Agreement to Lease dared 10 August 2006 for a further term of 5 years with effect from 1 September 2009.
      
   2. An order that the defendants do specifically perform the Agreement to Lease dated 10 August 2006 and in particular the renewal with effect from 1 September 2009.
      
   3. A declaration that the rental for the duration of the renewed term of 5 years is $14,000 per month plus Vat or alternatively (if it is found not to have been so agreed) to be fixed in terms of clause 9 of the Agreement to Lease dated 10 August 2006.
      
7. By High Court Action Number 30 of 2011, the defendants sought against the plaintiff the following orders:
   
   1. A declaration that the defendant has not validly exercised its option to renew the Agreement and that no further extension of the Agreement could be lawfully recognized and exercised.
      
   2. A declaration that the plaintiff had validly issued its notice for vacant possession to the defendant and that no extension could be properly claimed by the defendant under the Agreement.
      
   3. A declaration that the defendant had since 1 September 2009 been a monthly tenant as recognized by the Agreement; and
      
   4. An order that the defendant give up vacant possession of the property as it had not validly exercised its option to renew the agreement and had failed to negotiate the rental with the plaintiff in accordance with the Agreement.
      
8. This current action before me is brought by the plaintiff on the premise that during the pendency of the two consolidated actions being HBC 12 and 30 of 2011, the parties had entered into an agreement dated 25 January 2014. The plaintiff contends that a negotiation was entered into where the defendants had agreed to lease the subject premises for another 10 years, however, the plaintiff says that the issue of rental and the right of renewal was not settled.
   
9. The defendants refute that there ever was an agreement between them on 25 January 2014. It is the position of the defendants that all that happened between them was a discussion and that the pending HBC 12 and 30 of 2011 were never settled by the parties.
   
10. The plaintiff says that the parties had arrived at the following agreement on 25 January 2014:
    
    1. The plaintiff to pay $26,000 per month for 10 years effective 1 January 2014.
       
    2. The plaintiff will pay $50,000 to the 2^nd Defendant to fix the frontage and the rear to give a facelift.
       
    3. The plaintiff will change and bring new look inside the building.
       
    4. The plaintiff will fix the drainage and sewage system.
       
11. The plaintiff says that the above terms of the agreement were partly in writing, partly oral and partly by conduct of the parties. The plaintiff says that the defendants recorded and provided the terms in writing to the plaintiff through a facsimile bearing the date 25 January 2014. This agreement was not signed by the defendants but authenticated by transmission through facsimile.
    
12. It is the plaintiff’s contention that the defendants cannot deny the existence of the above agreement as it conducted itself in a manner that it accepted the said agreement.
    
13. The plaintiff now asserts in this claim, that by virtue of that agreement, it was impliedly agreed by the parties that:
    
    1. The agreement was to be on the same or similar terms as the previous agreement between the parties save for the specific matters contained in the 25 January 2014 facsimile.
       
    2. The parties intended their dealing to be legal.
       
    100. The agreement was subject to the consent of the Director of Lands as required under s. 13 of the State Lands Act.
         
    4. The defendants being the lessees of the Director of Lands had obtained and/or would apply for and obtain the relevant consents from the Director of Lands.
       
    5. The pending actions HBC 12 and 30 were settled with no further claims by any party
       
14. According to the plaintiff, it had been ready, willing and able to perform the agreement. It asserts that on several occasions and in the mediation proceedings in the Consolidated High Court Civil Action Numbers 12 and 30 of 2011 held on 16 May 2014, it requested the defendants to honour the agreement. The defendants refused to honour the same unless the plaintiff paid the sum of $500,000 in lieu of the $50,000 as per the agreement which the plaintiff refused to pay as the demand was wrongful. The defendants then issued a notice to vacate against the plaintiff on 29 July 2014.
    
15. The plaintiff says that it had relied upon the agreement and the defendants’ representations and acted on them to its detriment in that it did not look for alternative lands nor developed any property to accommodate its business elsewhere. It also adjusted its business plans and adjusted its budget forecast relying on the renewal terms.
    
16. The plaintiff contends that the defendants breached the agreement by not applying for and not obtaining the consent of the Director of Lands.
    
17. By reason of the breach of the implied terms of the agreement the plaintiff says that it has been put to expense, loss and damages.
    
18. The plaintiff also says that alternatively the plaintiff has a claim against the defendant under the CCCA as both the defendants were engaged in trade and commerce.
    
19. The plaintiff contends that it was approached by the defendants to negotiate and settle all outstanding matters and claims between them and agreed to grant a further term of 10 years lease to it. Both before and subsequent to the negotiations and the agreement, the defendants knew that the plaintiff required a premise to operate from and that it had not made any alternative plans to relocate its business after 31 August 2014. The defendants persuaded the plaintiff to negotiate and conclude the agreement which the plaintiff intended to be legal.
    
20. The defendant was engaged in misleading and deceptive conduct contrary to section 75 of the CCCA. The plaintiff says that the particulars of misleading and deceptive conduct are:
    
    1. That the defendants would grant a further lease for 10 years and the plaintiff could continue to remain in occupation as they were already in occupation under the prior agreement.
       
    2. The defendants represented that the agreement was to be on the same or similar terms as the previous agreement between the parties save for the specific matters contained in the facsimile bearing the date of 25 January 2014.
       
    100. The defendants represented that they intended their dealing to be legal and was and/or would be legitimized.
         
    4. The defendants expressly and/or impliedly represented that being the lessees of the Director of Lands they either had or would obtain the relevant consents from the Director of Lands under s. 13 of the State Lands Act.
       
    5. The plaintiff would be permitted to remain in possession with their consent.
       
    6. The defendants knew that the plaintiff would not have sufficient time if they did not honour the agreement to find alternative premises to operate its business.
       
21. The plaintiff therefore makes the following claims from the defendants for breach of the agreement and the CCCA:
    
    1. $ 4, 548, 513.00 for Loss of sales due to ceasing operations from demised premises from 26 August 2016 until recommencement at alternative site out of town.
       
    2. $887,552.00 for costs incurred in setting up alternative site to operate from.
       
    100. $18,254.00 for loss incurred as a result of breach of injunction orders by the defendants granted on 20 December 2011 when the 2^nd defendant had cut off the pipes and damaged the freezers on or about 1 September 2014.
         
    4. $103,520.00 for loss incurred in restoring the steps and other maintenance work before the building was handed over to the defendants.
       
    5. Damages for breach of CCCA.
       
    6. Damages for loss of chance.
       
    7. Interests and Costs.
       
22. The defendants have opposed all the claims and have also made a counterclaim against the plaintiff. Its position is outlined herein.
    
    2. The Defence and Counter-Claim
       
23. The defendants say that the grant of a fresh tenancy to the plaintiff was on the condition that the plaintiff would pay to the defendants outstanding rent of $540,000 for the renewed period under the 10 August 2006 Agreement. At all materials times, it was the position of the defendants that it will not consider negotiating a new lease unless the sum of $540,000 was paid to the defendants.
    
24. The defendants deny that any agreement was ever reached between the parties on 25 January 2014 and/or any dates thereafter for the defendants to lease its premises to the plaintiff. As a result there was no need to apply or obtain the consent from the Director of Lands.
    
25. The defendants says that all that happened was that there was a meeting between the plaintiff’s agents or servants with the 2^nd defendant. No negotiation or settlement ever emerged between the parties. If there was any agreement on 25 January 2014, then the same is null and void as the High Court has already ruled on this aspect.
    
26. On 21 October 2015, Mutunayam, J., after hearing the parties had ordered that the purported agreement of 25 January 2014 as relied on by the plaintiff was null and void for want of a written consent of the Director of Lands under s. 13 of the State Lands Act. The orders of Mutunayagam, J. was appealed and the Court of Appeal dismissed the appeal and affirmed the orders of the High Court. The orders of the Court of Appeal Fiji was appealed to the Supreme Court and on 21 April 2017, the Supreme Court dismissed the application for leave to appeal.
    
27. The defendant has a very robust approach that any arguments in respect of the 25 January 2014 agreement has been determined and now cannot be brought in the High Court again.
    
28. The defendants say that the 10 August 2006 agreement had expired on 31 August 2014. The plaintiff remained in occupation until 31 August 2016 despite a notice to quit and vacant possession which was delivered to the plaintiff.
    
29. The rent for the renewed period was either to have been agreed between the parties or the rent was to be determined by a registered Valuer to be appointed by the Chairman of the Valuer Registration Board of Fiji.
    
30. The defendants obtained a valuation report which assessed the rent at $23,000 per month which was exclusive of Vat. The plaintiff however continued to pay the rent for the renewed period at the rate of $14,000 per month. There was a shortfall of $9,000 a month. The defendants say that the plaintiff is liable to pay that amount from 1 September 2009 until 31 December 2013.
    
31. The defendants also claim a sum of $6,000 per month as arrears of rent from 1 January 2014 to 31 August 2016 being the difference in rent. The defendants say that the amount that ought to have been paid after the tenancy had expired in August 2014 was a sum of $32,000 per month but the plaintiff only paid a sum of $26,000 per month.
    
32. The defendants say that on 31 August 2016, the plaintiff vacated the premises and left the place after damaging it or after removing the defendant’s fixtures and chattels. The defendants therefore also claim the following amounts:
    
    1. $210,000 – being reduction of rents to Carpenters Fiji Limited for them to repair before moving in as tenants.
       
    2. $104, 582.30 for changing roof and lifting the mezzanine floors damaged by the plaintiff.
       
    100. $25,000 for repair of aluminum windows, security mesh, and sliding windows.
         
    4. $1,000,000 for damage to storm water outlet.
       
    5. $15,000 for painting the building (interior and exterior).
       
    6. $70,000 being two months rentals lost when the premises could not be let out to the new tenants due to the damages done by the plaintiff when it vacated the same.
       
    7. Damages for humiliation, anguish, and distress caused to the 2^nd defendant when the Fiji Development Bank put the subject property on mortgage as the plaintiff had stopped paying the rent.
       
    8. Pre – judgment interest at the rate of 10%.
       
       100. Plaintiff’s Defence to Counter-Claim
            
33. The plaintiff maintains its claims and says that the ruling of the High Court on s. 13 of the State Lands Act declaring that the agreement was null and void does not exterminate its claims for breach of the agreement, estoppel and claim for breach of CCCA.
    
34. The plaintiff says that it relied on the rights arising from the 25 January 2014 agreement to stay on the premises and that the defendants received the rentals until it vacated the premises.
    
35. The plaintiff says that the issue of shortfall of rent in the sum of $9,000 per month is already subject to High Court Civil Action Numbers 12 and 30 of 2011. It is an abuse of the process to make the same claim twice. The plaintiff further states that the issues in Action Numbers 12 and 30 of 2011 and any claim in this respect for shortfall of rent have been superseded by the 25 January 2014 agreement.
    
36. The 25 January 2014 agreement was not complied with by the defendants but the rentals were accepted as agreed under that agreement. The claim for rent from 2009 to 2013 is comprised by the agreement. Alternatively, the defendants are not entitled to make any claims for rents from 2014 if it says that the agreement lacked consent of the Director of Lands and is null and void.
    
37. The plaintiff says that the claim for rent from 2014 to 2016 was paid pursuant to the directions of the Court of appeal to the defendant’s solicitors.
    
38. On the issue of damage to the property on its vacating the same, the plaintiff says that the new tenants did its own fit outs for its use and occupation to suit its requirements. It also contends that there were several structural maintenance due to the premises which required the defendants to repair and were still outstanding at the time the plaintiff vacated the premises.The plaintiff says that it repaired the premises and carried out all the maintenance work during its occupation of the buildings.
    
39. On the issue of mortgagee sale, the plaintiff says that the FDB had written to the plaintiff and said that it would not accept rentals which were being paid by the plaintiff to the FDB on behalf of the defendants after 31 August 2014 on instructions from the defendants. The plaintiff’s solicitors had issued a letter of comfort to the FDB on or about 10 December 2015 as per the directions of the Court of Appeal.
    
40. The plaintiff says that it has paid rentals for the period of occupation but the defendants have harassed and caused humiliation to the plaintiffs, its servants and agents. The 2^nd defendant has also apologized for his contempt whilst the legal advisors of the defendants were fined and ordered to pay costs.
    
    4. Evidence, Law and Findings
       
41. Since there are several aspects of the claims by each party, it is important that I put each claim under a separate head. I will identify the relevant evidence that was given on behalf of each party under the respective heads.
    
42. To begin with, let me look at the claims by the plaintiff. The first issue is to decide whether the 25 January 2014 document was an agreement made by the parties, or representations made by the 2^nd defendant on which the plaintiff could have fairly and properly relied on. If I find in favour of the plaintiff then only will the question of loss of sales, costs for setting up an alternative venue and misleading and deceptive conduct under the CCCA will kick in.

1. The 25 January 2014 Document
   

43. The 25 January 2014 document was tendered in as P Ex- 14. It noted as follows:
    

“The agreement notes the following:

1. $26,000 per month for 10 years effective from 1^st January 2014.
   
2. $50,000 will be given to Mr. Bashir Khan by New World Supermarket to fix frontage and rear to give new face lift.
   
3. New World Supermarket will change new look inside the building.
   
4. New World Supermarket will have to fix drainage and sewage system.
   
5. Any changes in the agreement will be done in consultation with Mr. Sami of New World and Mr. Bashir Khan of Vanualevu Hardware (Fiji) Limited”.
   
44. Before I go into the facts of this case, it is important to state what the law says about agreements affecting interests in land, tenements and hereditaments. I turn to s. 59 (d) of the Indemnity, Guarantee and Bailment Act 1881. The material parts of the section reads as follows:
    

“No action shall be brought ... upon any contract for sale of lands, tenements or hereditaments or any interest in or concerning them; ... unless the agreement upon which such action is to be brought or some memorandum or note thereof is in writing and signed by the party to be charged therewith or some other person thereunto by him or her lawfully authorized”.

Highlighted and Underlined by me for emphasis

45. The above section very clearly covers not only sale of lands and buildings but any interest in the lands and buildings. The issue in this actions concerns a building and the right to occupy it under a leasing agreement and as such caught by the provisions of s. 59 (d).
    
46. If the plaintiff is to rely on the 25 January 2014 document to assert its rights on the property as a tenant or to recover loss arising as a result of the non-compliance of the agreement then it has to show to this court that the defendants had signed the document.
    
47. It is not disputed that the 25 January 2014 document was not signed by the defendants and in particular by Mr. Bashir Khan who is alleged to have agreed to the terms. In absence of that, I find that no claims can be brought pursuant to that document. I find that it cannot be maintained that the plaintiff suffered loss as a result of the 25 January 2014 document or that the plaintiff was misled or deceived by Mr. Bashir Khan.
    
48. The law requires that nothing short of a signed agreement would be sufficient and to go past the requirement of the law and grant the plaintiff damages based on an unsigned document would mean to create and interest in the building in favour of the plaintiff which is prohibited by law.
    
49. Now to the facts of the case. The parties have been in a leasing relationship since 1991. Since that time, every agreement between that was formalized. It was reduced in writing, it had precise and certain terms outlining each party’s rights and responsibilities, it was signed by both parties having rights and responsibilities and it was granted consent to be put in effect by the Director of Lands.
    
50. This indicates that the plaintiff knew and ought to have known what a formal and binding agreement required. It had traded with the same defendants before. Given that, it is inconceivable that the plaintiff treated the writings on a piece of paper as a valid agreement creating rights. If it did, then it was to its own detriment as the document cannot bind the defendants.
    
51. I find that the plaintiff’s contention that it accepted the 25 January 2014 document as a valid and binding agreement to be as a self- serving claim which not only defeats the requirements of the law but also barred by the law.
    
52. I also find that the plaintiff cannot rely on the CCCA to say that the plaintiff’s conduct was misleading and deceptive. If there was any discussion or agreement on that day, the plaintiff ought to know that it needed to comply with the requirements of the law before it can be given legal weight. If the plaintiff relied on the alleged representations by Mr. Khan then it can only blame itself for doing that.
    
53. I find that the 25 January 2014 document cannot create any legal or equitable rights in the property and that that the plaintiff is not entitled to assert any rights or recover any losses arising as a result of reliance on that document.
    
54. Further, into the facts of the case, how can the document be treated as an agreement when its own witness Mr. Prabha Nand Sami who was part of the 25 January 2014 meeting which gave rise to the document told Mr. Bashir Khan that they needed to formalize the agreement. He knew that the agreement needed to be formalized. If the 25 January 2014 document was to be given effect then why did Mr. Sami want the agreement to be formalized? I find that Mr. Sami knew that that piece of paper had no weight until it took the form of the previous agreements and was validated by the Director of Lands.
    
55. Even if Mr. Bashir Khan made any reliable representations on 25 January 2014, then within 4 days he had informed the plaintiff and indicated that the terms of 25 January 2014 document was not workable as he gave to the plaintiff a demand in its 29 January 2014 letter to pay up $500,000 or vacate the premises in 6 months. The letter was tendered in as P Ex – 5.
    
56. There could not be any long term reliance on the 25 January 2014 document as that was by conduct of Mr. Bashir Khan and the letter of 29 January 2014 being P Ex -5 changed and not given any effect.
    
57. The plaintiff should then have started making arrangements to move to an alternative premise to operate from. Mr. Sami said in his evidence that the plaintiff had planned a building 18 to 24 months prior to the expiry of the lease in August 2014. On the evidence therefore, when the plaintiff knew that the defendant was not going to give any validity to the 25 January 2014 document, it should then have implemented its plan to find an alternative place to operate from. In that case it would not suffer any losses as it claims.
    
58. The plaintiff cannot be said to be deceived as within 3 days of the 25 January 2014 document, it knew that the Mr. Bashir Khan has not and will not adhere to what was being noted in the document. It was then under a duty to vacate the premises to contain its own losses.
    
59. Further, the 2006 agreement was going to expire in August 2014. The plaintiff finally vacated the property after 2 years. In that 2 years the plaintiff could have found a new place or made its own building as it had the land in the same vicinity. It was under an obligation to mitigate its losses and since it did not, the blame cannot be levied on the defendants.
    
60. I find that the plaintiff cannot assert estoppel as there is a legal bar from raising the issue of estoppel. It cannot ask the court to implement an agreement which in law does not create any legal or equitable rights or is null and void.
    
    2. Damage to Freezers
61. The plaintiff says that the defendants had cut of the electrical pipes of the premises leading to the freezers being damaged for which the plaintiff sustained losses in the sum of $18, 254. The plaintiff says that this was in breach of the injunction orders issued on 20 December 2011.
    
62. If there was any breach of the injunction order, the plaintiff ought to have brought committal proceedings against the defendants and given clear evidence of who cut the electrical pipes, when that was done and a report from the Fiji Electricity as well that the pipes were cut.
    
63. There was no evidence to suggest that the defendants, its servants or agents or who in particular cut the pipes. When were the pipes cut? Where is the report from Fiji Electricity Authority on this? If the Electricity Authority confirmed the damages, were the wires live or dead at the time it was cut. Was anyone injured? Why was no report made to the police by the Fiji Electricity Authority for interference?
    
64. I find that there is insufficient evidence to show that the electrical wires were cut and that the defendant’s servants or agents did that. I find the claim unsustainable.
    
65. The plaintiff’s tendered in evidence two invoices by Lincoln Refrigeration. The invoices are dated 20 November 2014 and 25 November 2014. The invoices were tendered as P Ex – 24 and 25 respectively. Those invoices show the works that were carried out by Lincoln Refrigeration:
    

P Ex – 24: 20 Nov. 2014 Price $2,349.22

“attended job on call to check and locate fault in freezer room and cool room units. Upon inspection found out that the unit has gas leakage. Repaired leaks, re pressure test ok, vaccum test ok. Charged the unit with R404a gas and test run the units for satisfactory operation ok. Changed oil and liquid line driers of 3 x units”.

P Ex – 25: 25 Nov. 2014 Price $14,669.09

“Attended call to check and locate fault in all the refrigeration unit at the above location. Upon inspection found out that the pipes and electrical cable were missing. Carry out new piping works for 2 x island display unit, I x diary produce and 1 x service case with electrical cables. Pressure test the units ok, vaccum tests ok, charged all units with 404a tested ok. Changed oil and liquid line drier for the above mentioned units”.

66. The first invoice by Lincoln Refrigeration does not assist the plaintiff’s case. What it evidences is gas leakage. No witness was produced to say why there was leakage and if the leakage was as a result of the cut electrical pipes.
    
67. The second invoice indicates that pipes and electrical cables were missing. It does not link the fault to the defendants. If the supermarket was in operation and the freezers were functioning then for the defendants to interfere with the pipes and live electrical wires would require some degree of assistance from experienced electricians. I am not convinced that the defendants have gone to interfere with the electrical wires which could be hazardous to the life of the person interfering with it.
    
    100. Loss incurred in restoring steps and other maintenance work before handing over building.
         
68. I am surprised that the plaintiff is making this claim when it was supposed to hand over to the plaintiff the building in the condition it received it. If it had done fixtures and fittings to suit its business then upon removing the same, it ought to repair the building and hand the same in a proper condition to the defendants.
    
69. I do not doubt that the plaintiff repaired the building before handing over to the defendants but those repairs were necessary as it would put the building in the condition that the defendants gave the plaintiff to. It is the plaintiff’s own evidence that it did not repair the damage that the defendants were supposed to attend to. It repaired the damages caused by the plaintiff during the occupation of the premises. I find the claim unsubstantiated.
    
70. For the above reasons, I find that the plaintiff cannot maintain any of its claims for losses. I now turn to the defendants counter-claim.
    
    4. Counter-Claim

(i). Rent Arrears

71. The first set of claim by the defendant is a sum of $ 9,000 per month from 1 September 2009 until 31 December 2013. The defendants’ position is that when the 2006 agreement expired in August 2009, the defendants stayed on the property despite not exercising its rights of renewal. The defendants say that the plaintiff could not have stayed on the same on the old rent of $14,000 but should have paid a sum of $23,000 as valued by the defendants Valuer. As a result the plaintiff should pay a sum of $9,000 per month being the difference from 1 September 2009.
    
72. The evidence of the plaintiff’s witness Mr. Sami on this aspect was that under the 2006 agreement, if the tenancy agreement was renewed then both the parties had to agree to a rental figure and in absence of any agreement, an independent Valuer had to be appointed to set a figure on the rent. He said that contrary to the terms of this agreement, Mr. Bashir Khan went ahead and appointed its own Valuer and the valuation report set a figure of $25,000 per month.
    
73. The plaintiff says that its Valuer had assessed $18,000 per month as the new rental and that the plaintiff advised the defendant of this. The plaintiff continued to pay a sum of $14,000.
    
74. I want to first determine whether the claim for difference in rent since 1 September 2009 to 31 December 2013 should be part of this claim. For this I turn to action numbers 12 and 20 of 2011. In those actions, the issue before the court is not only on the aspect of whether the plaintiff exercised its right of renewal but also what ought to be the proper rent as the plaintiff has sought a declaration that the rent ought to be at the rate of $14,000 per month.. That action precedes this claim and action.
    
75. The Court Officer from Labasa High Court testified on the status of HBC 12 and 30 of 2011. Mr. Elia Niubalavu gave evidence and tendered the pleadings in those actions. He also stated that those actions have not be stayed, struck out or discontinued or subject to any Order 25 application (summons to show cause why the action should not be struck out).
    
76. I reiterate that if there is already a pending action for rights and obligations arising out of the 10 August 2006 agreement which includes the issue of what should be the proper rent paid for 5 years then the parties must have their rights and liabilities determined in that action. That action is still on foot and without discontinuing that or consolidating that with this claim, it is an abuse to duplicate claims. There is no undertaking by any party that the claim in those actions are abandoned to allow the court to make a determination of issues in the earlier actions in this claim. I therefore find that the proper proceeding in which the issue of renewal and rent is to be decided is High Court Civil Action Numbers 12 and 30 of 2011 and that the parties should proceed to resolve the issue in that file with due diligence.
    
77. If it was for me to consider whether the plaintiff did exercise its right of renewal under the 10 August 2006 agreement then I find that the plaintiff has already stayed on the property for the period of contention. It is now moot to revisit the issue of whether the plaintiff has exercised its right of renewal. The remaining issue from the earlier proceeding is the question of the proper rent that ought to be paid to the defendants. The plaintiff says that the parties were to agree to a rent and in absence of that an independent Valuer was to be appointed.
    
78. Let me look at the clause that deals with the issue of rent if the plaintiff exercised its right to renew the tenancy. The relevant clause is clause 9.0. It reads:
    

“ Option for Renewal

9.0 The Lessor and the Lessee further covenant with each other that should the Lessee desire to take up a renewed and/or a further Lease of the demised premised for a further term of five [5} years from the expiration of the term hereby granted and shall have given the Lessor notice in writing, not less than three [3] months and not more than six [6] months prior to the expiration of the term of this Lease, of the Lessee’s desire to take a further lease of the demised premises for a further term then the Lessor shall grant to the Lessee a renewal of this lease for a further term only as is granted by this clause with the exception of a further right of renewal PROVIDED THAT if the parties hereto are unable to agree to the rental to be charged for such renewed term the same shall forthwith be referred to a registered Valuer to be appointed by the Chairman for the time being of the Valuers Registration Board of Fiji whose determination shall be final and binding on the Lesssor and Lessee.

9.1 Either party shall be entitled to request the appointment of such registered Valuer who shall act as an expert and not as an arbitrator in determining the rental payable for the renewed term of the Lease hereunder and the costs of such Valuer to be paid in equal shares by the Lessor and Lessee.

9.2 In the event of any rent for any succeeding period not having been finally determined at the commencement of such period, then the Lessee shall continue to pay on account of rent the same amount as is payable for rental at the date of the expiration of the term of this Lease and any adjusting payment will be made between the parties as soon as the rent has been finally determined pursuant to the provisions of this clause.

9.3 Any Valuer appointed pursuant to this clause must be a full member of not less than ten [0] years of standing duly registered with the Valuers Registration Board in Fiji”.

79. It is not in dispute that the parties could not agree to what the rent should be for the 5 years under the 2006 agreement. In that case either party could have requested the Chairman of the Valuers Registrations Board of Fiji to appoint a Valuer who would have been independent and paid for equally by the parties. The appointed Valuer would have not less than 10 years’ experience.
    
80. There is no evidence before me that a proper Valuer was appointed by the Chairman. In absence of any such evidence, I do not accept any party’s contention on what should be the proper rent.
    
81. If the parties properly prosecute the pending actions in the Court, they can perhaps take heed of what my observations in this matter, I will say no more on this particular aspect.
    
82. The second set of claim is for arrears of rent from 1 September 2014 to 31 August 2016. It is undisputed that the plaintiff has been paying a sum of $26,000 per month for this period as per the judgment of the President of the Court of Appeal Calanchini, J.A.
    
83. On 17 December 2015, the Court of Appeal in Action Number ABU 76 of 2015 granted conditional stay to the plaintiff. The conditions for stay were that:
    
    1. The plaintiff was to pay the rent owing between 1 January 2014 and 31 August 2014 being $12,000.00 per month for 8 months together with interest fixed at 5% within 7 days from the date of this judgment.
       
    2. The plaintiff was to pay the rent owing between 1 September 2014 to 30 November 2015 being $26,000 per month with interest fixed at 5% within 7 days from the date of this judgment.
       
    100. The plaintiff was to pay the sum of $26,000 as the monthly rent due on 1 December 2015 within 7 days from the date of the judgment.
         
    4. The plaintiff was to pay future monthly rent as and when it was due until the determination of the appeal.
       
84. The plaintiff has not defaulted in the order of the Court of Appeal. It has complied fully with the orders. Although the Court of Appeal did not make a finding of fact as to what is the proper amount that is due and owing for the period 1 September 2014 to 31 August 2016 being the period from the expiry of the 2006 agreement until the date of vacation of the property, I find that the sum of $26,000 should be the rate at which the rent should be charged.
    
85. The defendants are claiming a sum of $32,000 per month for this period based on D Ex – 32 which is a valuation report by Professional Valuations Limited. The Valuation Report says that a valuation was carried out on 16 January 2015 and that the rental market for the property that the plaintiff occupied was $32,000 per month Vat exclusive.
    
86. I do not accept that the plaintiff should pay that amount of rent. The reasons for my findings are identified below. First, there was never any discussion and/or agreement between the parties to pay rental in that sum. However there was discussion at the very least to pay a sum of $26,000 per month and this is not denied by Mr. Bashir Khan. The parties’ intention was to agree to a figure of $26,000 and not $32,000. To impose $32,000 on a tenant without any discussion or agreement would be inequitable on the grounds that it is exorbitant.
    
87. Further, in 2006 the rent of the property was fixed at $14,000. In 9 years’ time the valuation shows the market rental was more than double the rate because the rent got increased by $18,000. I find this rate of rent in Northern Division surprising and if fairly put to the plaintiff would not have been accepted. I therefore find the sum of $32,000 per month unjustified.
    

(ii). Damages to Property by Plaintiff whilst Vacating

88. Before I attend to the specific claims for damages by the defendants, I must say that there were so many photos tendered on the status of the property before the plaintiff vacated the same. The photos have been exhibited in evidence. The photos indeed show a lot of mess in the premises. It shows debris on the floors, hanging wires, tubes lights in trolleys and so many other damages. However, these photos are not of the day or even aftermath of the plaintiff vacating the premises.
    
89. The photos were taken when the plaintiff was carrying out works on the premises to hand over the same to the defendants. The dates on the photos are for work in progress before the property was handed over to the defendants.
    
90. I accept the plaintiff’s evidence that the photos substantiates its claims that the property was repaired and in a proper condition before it was handed over to the defendants. The photos show that the plaintiff is repairing the property. It shows that the plaintiff’s workers are on the property and are repairing the same.
    
91. The defendants’ witness PC 3651 Sharma testified that when he went to the premises on 17 August 2016, he noticed that the ceiling fan, power point, FEA meters and partition for the cafeteria was removed. He further said that he visited the ground floor and the 1^st floor, the building looked like a hall. He said there was no partition. He also said that there was no floor between the first floor and the ground floor. There was no other time that he visited the property.
    
92. In cross-examination PC Sharma said that Mr. Bashir Khan had wrongly advised him that on 17 August 2016, the plaintiff had damaged the property and left the same. He said that he did not see any workers on the property. He said that the Mr. Bashir Khan had taken him around and showed him the damage on the property. He saw rubbish like broken tiles and some sacks. It appeared that the place was under construction but there were not big dumps or debris. He said that he did not see any workers on the premises. When PC Sharma was shown photograph number 2, he said that he did not see anything like that. I must say that photograph number 2 is D Ex- 23. It shows in that photo that there is a big dump of construction rubbish on the floor of the premises and a volume of electrical wires hanging from the roof.
    
93. PC Tomasi who accompanied PC Sharma said that he saw some workers on the premises. His evidence was contrary to that of PC Sharma in this regard.
    
94. None of the defendants’ police officer witnesses have satisfied me that the plaintiff left the property in a mess or in a damaged condition. What I am satisfied is that Mr. Bashir Khan took them to show the property when the plaintiff was repairing the same to show that the property is damaged. When he showed the property to the two witnesses, the plaintiff was still in occupation of the building and repairing the same.
    
95. If the plaintiff had left the premises in a damaged condition then I expect some photographs of that to be given to court on the basis that the defendants had been taking photographs of the premises that was under repair by the plaintiff.
    
96. Let me now turn to the specific claims by the defendants in respect of the building after the plaintiff vacated the same. The first claim is for a sum of $210,000. The defendants say that this sum represents reduction in rent to the new tenants Carpenters Fiji Limited. It is contended that Carpenters Fiji Limited has spent this money in repairing the property damaged by the plaintiff. There was no evidence of any invoice or receipts for works done by the new tenant.
    
97. The defendant’s witness Mr. Nitendra Kumar testified that the receipts and evidence got destroyed in fire. Even if it got destroyed in fire, Carpenters Fiji Limited could have produced secondary evidence to suggest that it carried out works. Its evidence was that it provided labour works to repair the building.
    
98. Every commercial company prepares its financial statements for the year showing the income and expenditure to assess the proper tax that ought to be paid. At least a financial statement prepared for tax purposes could have been brought to court. The financial statement would show this expense. I am sure that even if the documents got destroyed in fire, the new tenant is still liable to pay tax and for it to do that it has to prepare its financial statements. I am not satisfied that work for $210,000 was done by the new tenants and if any work was done, it was to suit its specifications. That cannot be recovered from the plaintiff.
    
99. I found Mr. Nitendra Kumar to be an evasive, incredible witness who was not independent as he was being employed by Carpenters Fiji Limited, the new tenant of the defendants and the evidence was tailored to suit the interests of the defendants. Mr. Nitendra Kumar said in his evidence that when he went to inspect the building before the plaintiff vacated the same, it was being repaired by the plaintiff. He said that the building was handed over in a damaged condition. What was the condition could have been depicted through pictures. No evidence was produced to state the condition of the building. He behaved evasively when he was asked about receipts and invoices for the $210,000 expenditure for alleged repairs. I find the evidence to be unreliable.
    
100. The defendants also claim a sum of $104,582.30 to change the roof and lift the mezzanine floor that it alleges was damaged by the plaintiff. I will first deal with the issue of mezzanine floor.
     
101. The defendant’s position is that the plaintiff had removed the mezzanine floor. The defendants say that there was a cement floor and not the wooden mezzanine floor. The plaintiff’s deny this. What the plaintiff says is that the premises had a ground floor and the first floor. In between the ground and first floor there was a wooden mezzanine floor and in between the first floor and the roof, the plaintiff had built its own concrete mezzanine floor to be used for storing. At the time of vacating the property the plaintiff says that it had removed the concrete mezzanine floor and left the wooden mezzanine floor as it was.
     
102. I accept the evidence of the plaintiff that the wooden mezzanine floor was not removed by the plaintiff. I have seen the photos of the premises of the month in which the plaintiff vacated the premises. It shows that there existed a wooden mezzanine floor. If the wooden mezzanine floor was removed then the defendant would have taken some pictures and shown it to the court. In absence of any such concrete evidence I accept that the wooden mezzanine floor was not removed.
     
103. I turn to D Ex – 10 which is a tenancy agreement between the current defendants and Carpenters Fiji Limited. The agreement was post the plaintiff vacating the property. The relevant clauses in that agreement are clauses 24.4 and 25.1. They read as follow:
     

“24. 3 The Tenant shall be responsible at its own cost to affix the joist of the raised mezzanine floor....”

25.1 The Landlord will “lift” the mezzanine floor to the first floor level at its own cost. The Landlord undertakes to provide engineering drawings duly passed and stamped by the Labasa Town Council before lifting the mezzanine floor to the first floor level”.

104. If the plaintiff had removed the mezzanine floor then there was nothing to lift. The agreement would not talk about lifting the mezzanine floor and affixing the joist of the raised mezzanine floor. It will talk about making or constructing a mezzanine floor.
     
105. The defendants own agreement contradicts its claim and contention. Further, I refer to D Ex – 9. This is a quotation by Pinto Industries Limited dated 26 August 2016. This is just 4 days prior to the property being handed over to the defendants. The quotation includes the scope of works to be carried out. It states:
     

“Removal of all timber and ceiling boards on current mezzanine floor.

Removal of all Joist timbers.

Cut, weld and grinding of I- beams to the existing second floor height”.

106. The quotation once again supports the plaintiff’s contention that the wooden mezzanine floor existed that is why it talks about removing timber and ceiling boards on current mezzanine floor. If the plaintiff had removed it, why would there be a need to obtain quotation to remove the timber and ceiling board on the existing mezzanine floor again. I do not find that the defendants’ evidence can be accepted in light of its own documentary evidence.
     
107. I am also concerned that if the new tenant Carpenters Fiji Limited wanted the mezzanine floor lifted to its own specifications, then why is the plaintiff to pay for that cost? The plaintiff had used the same mezzanine floor for ages. If the new tenant does not want the same mezzanine floor, then the issue is a matter between the new tenant and the defendants. The claim by the defendants in this regard is dishonest.
     
108. I now turn to the issue of repairing roofs. I do not find that it was the obligation of the plaintiff to repair the entire roof. If there was rust, rots, wear and tear damage to the entire roof, that was a matter for the landlord to repair.
     
109. The obligation of the plaintiff was to repair the roof which got damaged by the compressor it had placed on the roof for the purposes of its commercial operations. The main damage and the surrounding damage by the compressor was the obligation of the plaintiff.
     
110. I accept the evidence of plaintiff that it did not leave the building with the damaged roof. The photos tendered by the plaintiff shows that its workers are repairing the roof. The date of the photographs are 17 August 2016. The defendants tendered a photo dated 18 August 2016 showing that there was tear in the roof but that photo I accept is for work in progress. By then the plaintiff was still occupying the premises and not handed over the same to the defendant. Why have the defendants’ not tendered any photo of the roof after 31 August 2016? I find that the reason is that the plaintiff had repaired the roof and that is why there is no evidence of damaged roof after 31 August 2016.
     
111. Further, the evidence of the defendant’s witness Dharmendra Kumar was that he was approached by Mr. Khan in September 2016 to do certain repairs to the subject premises. He had been working on the same building for a different company. He said that before he commenced repair works Mr. Khan told him that the roof has leakage so the witness suggested to the 2^nd defendant to change the roof. He gave this advice because the other repairs were in pieces and could give a leakage. In cross examination he confirmed that there were leakages at places and since the roof was repaired in pieces, it was going to have leakages. The evidence of Dharmendra Kumar supports the evidence of the plaintiff that it repaired the roof in places where damage was caused to it by the plaintiff.
     
112. The agreement with the new tenant Carpenters Fiji Limited at clause 29.1 states that “the Landlord at its own cost will replace and fit in new roofs for the premises”. If the new tenant wanted a new roof, then the repairs to the roof by the plaintiff in any event was a waste. I do not find that any small leakages was a loss to the defendants as the new tenant did not want a repaired roof but a new roof.
     
113. The defendants also claim a sum of $25,000 for repairs done to the aluminum windows, security mesh and sliding doors. I find that the defendants own witness’s testimony does not support its claim that the plaintiff had caused damage to the aluminum windows, security mesh and sliding doors. Mr. Vinay Sharma testified that Mr. Bashir Khan asked him to inspect the building to provide sliding windows and security grills which he provided at a cost of $25,000. He said that later Mr. Bashir Khan wanted 2 glass doors so he provided the same at an extra cost of $1,100. In cross-examination he clarified that the installation was for open space and that he did not remove anything to put anything new.
     
114. The evidence of Mr. Vinay Sharma clarifies that Mr. Bashir Khan had asked for new fittings in the premises and he now wants the plaintiff to bear the cost of this which is highly unacceptable. If there was damage done to the existing fittings and fixtures, the witness would have said so. He was a material witness who could give evidence of this.
     
115. The defendants are also claiming a sum of $100,000 for damage done to storm water outlet. There is no evidence on how the plaintiff damaged the storm water outlet and that’s its actions were intentional or negligent. I accept the evidence of the plaintiff that it did not damage the storm water outlet because it would not serve any purpose if the plaintiff did this. It was operating from this premise and any blockage to the outlet would only cause flooding and would not be commercially viable for the plaintiff. The plaintiff had been operating from this premises from 1991 and once in 2011 it was warned to clean the storm water outlet. The plaintiff attended to this problem. After that there was no evidence of damage to storm water outlet done by the plaintiff.
     
116. I am also of the view that repairs to the exterior of the building which includes storm water outlets was the responsibility of the owner and not the tenant unless the blockages are caused by the actions or inactions of the tenant.
     
117. The defendant also claims that a sum of $15,000 was used for interior and exterior painting of the building. I accept the evidence and contention by the plaintiff that this amount of money was spent to suit the new tenant requirements as the plaintiff had painted it differently. The witness from Carpenters Fiji Limited also confirmed this and further stated that painting was done by Carpenters Fiji Limited to suit its requirement. If that is the case then the plaintiff cannot be held responsible for the new tenant’s requirements for the premises to be painted in a certain specific way. The claim cannot be recovered from the plaintiff.
     
118. The defendant’s final claim against the plaintiff is for loss of rent in the sum of $70,000 for two months. The defendants say that 2 months was needed to repair the building and for this time the defendants could not charge rent.
     
119. In my findings, the plaintiff has repaired the premises before it vacated the same. If there was time needed for the new tenant to put the building to a specific state to suit its requirement then the matter is between the new tenant and the defendants and the plaintiff is not liable for this.
     
120. I also turn to the evidence of Mr. Bashir Khan. In cross- examination he testified that twice this new tenant had given him a sum of $30,000. The total he received was $60,000. This was for rent and that this rent was paid in 2006 and 2009. The rent was paid even though the plaintiff was occupying the property as a tenant but Mr. Bashir Khan wanted the new tenant. If that sum of money has already been received and there is no evidence of return of this money then Mr. Bashir Khan has not lost any rental income.
     
121. Finally, on the question of damages for being humiliated when the Fiji Development Bank advertised the subject property for mortgagee sale, I find that it is the defendants who have admitted that the Bank stopped accepting the rental income from the plaintiff because the defendants had instructed the Bank not to accept any monies from the plaintiff.
     
122. The plaintiff had not stopped paying the amount of 14,.000 pursuant to the 2006 Agreement and other amounts pursuant to the orders of the Court of Appeal. The plaintiff cannot be held liable for any damages under this head.
     
123. If the Bank had advertised the property for mortgagee sale, it is through the negligence of the mortgagees and not the plaintiff. The claim against the plaintiff is absurd.
     
     5. Final Orders
        
124. I make the following final orders:
     
     1. The plaintiff’s claim against the defendants are dismissed.
        
     2. The defendant’s claims against the plaintiff are dismissed except for the claim for rental for 5 years under the 10 August 2006 Agreement.
        
     100. The claim for rental for 5 years under the 10 August 2006 Agreement is struck out.
          
     4. Each party is to bear their own costs of the proceedings.
        

...........................................

Hon. Madam Justice Anjala Wati

Judge

21. 01. 2022

To:

1. AK Lawyers for the Plaintiff.
2. AK Singh Lawyers for the Defendants.
3. File: Labasa- HBC 45 of 2014.