Rao v Sanday [1977] FJSC 20; Civil Action 019 of 1977 (19 April 1977)

Fiji Islands - Rao v Sanday - Pacific Law Materials

IN THE SUPREME COURT OF FIJI

CIVIL JURISDICTION

ACTION NO. 19 OF 1977

BETWEEN:

:

VENKANNA NARSINGHA RAO
Plaintiff

AND:

HENRY E. SANDAY
Defendant

DECISION

This is an application under section 169 of the Land Transfer Act 1971 for possession of residentremises situate on the land contained in certificate of title No. 8224 in Suva.

The dThe defendant was given notice to vacate the premises by the 31st December, 1976 by written notice dated the 26th day of November, 1976. The plaintiff's affidavit filed in support of his application does not indicate how or when this notice was served on the defendant. If the notice was served on the defendant this fact should have been referred to in the affidavit. It is not sufficient merely to allege in the affidavit that legal notice to quit was given to the defendant.

The defendant filed an affidavit alleging that he had paid rent up to February, 1977 and that the notice to quit was therefor invalid. He also claimed to be protected by the Fair Rents Act (sic).

In reply the plaintiff filed an affidavit admitting that the defendant by letter dated 5th February, 1977 enclosed a cheque for $57 "being the rent for January, 1977 which rent had been due and payable on the 1st day of January, 1977." The plaintiff also admitted the defendant by letter dated 20th February 1977 forwarded a further cheque for $57.00 "being rent for February 1977 which rent was due and payable on 1st February 1977."

The plaintiff denied accepting the rent moneys and stated he handed the letters to his solicitors.

The plaintiff's solicitors by letter dated the 24th February, 1977 wrote to the defendant acknowledging the defendant's letter of 6th January, 1977 and enclosing a receipt for $57. The defendant's attention was drawn to the fact that the rent was received without prejudice to the notices to quit. The second payment of $57 was dealt with by the solicitors in a similar manner.

Photocopies of the receipts were exhibited with the letters of the plaintiff's affidavit. The receipt for the first payment has written on it "without prejudice to notices to quit and legal proceedings for eviction". The receipt indicates the money was credited to the plaintiff and was "late payment rent for January 1977".

An affidavit was also filed on behalf of the plaintiff sworn by Timoci Waqairavoka Vesikula, a registered valuer, to which was attached a valuation of the premises, half of which were occupied by the defendant. The valuation indicates that the value of the premises occupied by the defendant exceeds $12000 and the portion occupied by the defendant exceeded $6000.

Under the provisions of section 169 of the Land Transfer Act the onus is on the defendant to show cause why he should not give up possession to the applicant and he must prove to the satisfaction of the judge a right to the possession of the premises. The defendant's defence is two-fold that the plaintiff has accepted rent for two months after the purported termination of the tenancy and that he is also protected by the Fair Rents Ordinance.

Mr. Knight for the plaintiff relies an section 100(2) of the Property Law Act in support of his argument that acceptance of January and February, 1977 rent "without prejudice" was not a waiver of the right to enforce the notice to quit.

In my view section 100(2) of the Property Law Act has no application to the facts in the present case.

Ignoring the defendant's contention that he is a protected tenant under the Fair Rents Ordinance, the tenancy was determined on the 31st day of December, 1977. After that date the plaintiff accepted "without prejudice" rent for the months of January and February, 1977. Had the rent been in respect of a period prior to the determination of the tenancy then section 100(2) would apply if rent was accepted "without prejudice". No new tenancy in such an event would have been created nor would the old tenancy have been revived.

In my view "rent" in section 100(2) is rent due or payable under the tenancy which is terminated by the notice to quit.

The acknowledged acceptance of rent for January and February, 1977 is clear evidence that in those months a tenancy existed and it can only be a new tenancy since the former tenancy is alleged by the plaintiff to have been terminated on 31st December, 1976. The addition of the words "without prejudice to notices to quit and legal proceedings for eviction" on one of the receipts must in the circumstances be treated as having no legal effect. The plaintiff cannot be permitted to allege the tenancy was legally terminated and to accept rent for periods after the termination and then to contend that since the rent was accepted "without prejudice" the new tenancy must be ignored and an order for possession be made.

It would have been in order to accept rent "without prejudice" before the 31st December 1976 or even after that date if the rent was for a period before the tenancy was determined. Acceptance of rent for any period after the determination created a new tenancy and a further notice determining the new tenancy would have to be given before the plaintiff can seek an order for possession.

I am satisfied that the defendant has proved to my satisfaction a right to remain in possession of the premises.

It is not necessary to consider the defendant's claim to be protected by the Fair Rents Ordinance but if I had to do so I would hold that this raises an issue which cannot in this case be properly dealt with in chambers. Mr. Knight argued that I should accept the Registered Valuer's affidavit evidence as he is more qualified than the defendant to assess the value of the premises. The defendant may have been able to produce a qualified witness to establish a different value if he had had an opportunity to do so. In that event I would be faced with conflicting affidavits and be in no position to accept one or reject the other.

The summary procedure to obtain possession of premises provided by the Act is not suitable for cases which are contested and there is a conflict of evidence or raises triable issues. It is open to a judge under section 172 to order that the claim for possession be prosecuted in the normal way and for hearing in open court and this would have been the order I would have made but for the fact that I am satisfied the defendant has proved a right to remain in possession of the premises.

The application is dismissed with costs to the defendant.

R.G. Kermode
JUDGE

Suva,
19th April, 1977.