Morris Hedstron Ltd v Wong Keong [1977] FJSC 149; Action 7 of 1977 (31 May 1977)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA

Civil Jurisdiction
Action No. 77 of 1977

BETWEEN

MORRIS HEDSTROM LIMITED
(Plaintiff)

AND

WONG KEONG
(Defendant)

Mr. B.C. Patel for the Plaintiff
Mr. C. Gordon & Tappoo for the Defendant

JUDGMENT

This is an application under section 169 of the Land Transfer Act 1971 whereby the plaintiff seeks possession of certain premises which it has let to the defendant. The plaintiff's manager at Lautoka swore an affidavit in which he deposed that the defendant was one of the occupants of a block of buildings known as the Saru building which is one of a number of buildings erected on the property of the plaintiff at Veitari Lautoka containing 4 acres 2 roods 34.6 perches. I may say that none of this appears in the body of the affidavit but has been gleaned from the title produced by the plaintiff and from a plan exhibited to the affidavit. The deponent did not tell the Court whether the tenant held any sort of a tenancy agreement, although I suspect from what defendant's solicitor said that there is a writing of some kind, and doubtless that writing will be found to set out the terms and conditions of tenancy, and maybe the purposes of the tenancy. Be that as it may, no such agreement has been produced. It appears from the plan exhibited to the deponent's affidavits that there are five shops on the ground floor of the building with, I presume, five sets of accommodation on the first floor, and the defendant occupies one shop with living accommodation immediately above. His affidavit states that the living accommodation contains 3 rooms with kitchen, lavatory and shower, although he admits that he and his family do not live there but that the living accommodation above the shop is occupied by his son and other employees. The plaintiff's manager says that the defendant is a monthly tenant but he has not told the Court the facts upon which that conclusion is based, for the defendant says he is yearly tenant. Plaintiff also says that he believes that the shop and living accommodation was let to the defendant for commercial purposes and he further says they are used predominantly for commercial purposes, but the last mentioned matter is a conclusion which it is for the Court to reach after reviewing the evidence. This is not the first time that this court has pointed out that solicitors in preparing affidavits should state the facts from which conclusions are to be drawn, and leave the court to draw the conclusions. In this case, for example it is for the Court to decide whether the tenant is yearly or monthly from the evidence produced, and it is also for the Court to decide from the evidence adduced, since the premises appear to have been let in one lease both for human habitation and for business purposes, which is the predominant character of the premises. That will depend on the nature of the premises, the object of the letting, the rent and other factors. The affidavit does not disclose how long this tenant has been in these premises, although a subsequent affidavit indicates that some of the other tenants had been their shops for fifteen years. The plan exhibited to the deponents affidavits shows a building marked 'Old Morris Hedstrom store' and it was also mentioned to me that these shops are not far from the sugar mill, and I was invited to take judicial notice of this fact. It is a matter which can be covered by evidence.

The question then is, what is to be done. Mr. Patel asks me to adjourn the application into Court if the matter has to be decided by oral evidence. It has been my custom to dismiss these applications if an order for possession cannot be made, because the whole case is apt to become confused. However, section 172 of the Land Transfer Act provides that if the person summoned proves to the satisfaction of the judge in chambers a right to possession of the land, the judge shall dismiss the application with costs, and it goes on 'or he may make any order, or impose any terms he may think fit.' Some judges do adjourn these applications into Court if they are not satisfied about proof of the applicant's claim. Here the defendant has not proved to my satisfaction a right to possession, but he may have such a right to possession, but he may have such a right and may be able to prove it after the hearing of oral evidence. In these circumstances I think that the proper thing to do is to adjourn this summons into Court for the hearing of oral evidence. At that hearing there will be no pleadings and no regard will be paid to affidavit evidence, except in so far as it leads to an estimate of the reliability of the evidence of a witness. The costs of the application in chambers will abide the result of the hearing in Court.

(SGD.) K.A. STUART
JUDGE

LAUTOKA
31st May, 1977