Suleman v Tagiyasi [1979] FJSC 48; Action 77 of 1979 (30 May 1979)

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

Action No. 77 of 1979

BETWEEN

SULEMAN f/n Mohammed
AND 3 ORS
Plaintiffs

AND

TUIVAI TAGIYSI
Defendant

Mr. Verma, Counsel for the Plaintiffs

JUDGMENT

This is a landlord's action brought under S. 169 of the L.T.A. 1971 for possession of a flat in Nadi.

The landlord, very fairly, from the beginning has made it apparent that the flat is governed by the Fair Rents Ordinance Cap. 241.

Under the Fair Rents Ordinance, S.169, the power of the Court to Order possession of a dwelling to which the Ordinance applies is restricted. A judgment for possession can only be made in certain cases which are set out in clauses (a) to (j) of subsection one. The plaintiff relies upon clause (e) thereof which allows an order for possession where:

"(e) the premises are bona fide required by the lessor for his own occupation as a dwelling house and the lessor gives at least twenty eight days' notice in writing to the lessee requiring him to quit and (except as otherwise provided in this section) the court is satisfied that reasonable adequate and suitable alternative accommodation is available at a rent not substantially in excess of the rent of the premises to which the judgment or order relates;"

There is a proviso to clause (e) setting out five sets of circumstances (i) to (v) in which the existence of alternative accommodation shall not be a condition and number (v) is where the landlord has given the tenant at least 6 months' notice.

It is common ground that on 3rd August 1978 the landlord gave the tenant 6 months' notice to quit.

When the action was first mentioned on 11/5/79 the defendant said that he had been unable to find any suitable alternative accommodation and although the notice to quit had expired he was still in possession.

The landlord contended that since he had given the tenant 6 months' notice he was entitled to possession without any further ado.

I took the view that S. 19(1)(e) required the Court to be satisfied not only as to alternative accommodation but also as to whether the landlord really required the premises bona fide for his own use and occupation. Although the 6 months' notice to quit obviates any enquiry into the existence of alternative accommodation there remains the statutory condition that possession is bona fide required. I considered that I should hear evidence from the landlord as to his bona fides.

The dwelling in question is one of three flats which were built in 1978 by the plaintiff and the other two co-owners. The defendant states, and I believe him, that he moved into the flat in question at the end of April, 1978 when the building was not quite fully completed. Being a plumber he helped a little in completing the flats. He says that the last tenant moved in about a month after him, that would be about the end of May 1978. That evidence is, in my view, of significance in regard to the plaintiff's bona fides.

The plaintiff is a school teacher at Momi which he says is 4 miles from Nadi, is married and has one child which is 3 years old and he says the child suffers from asthma and has done so since it was 6 months old. Because of the asthma the child has to attend Nadi hospital frequently and the 4 mile journey is a hardship because the plaintiff does not like to leave his wife in an area which he says is somewhat unprotected and exposed to thieves.

One thing which occurs to me is that the plaintiff's problem is not of recent origin. It has not arisen since the defendant went into occupation. It is 2 ½ years old. In May 1978 it had lasted for 1½ years but the plaintiff did not see fit then to take one of the empty flats. About that time 3 flats had been constructed of which the plaintiff was part owner. He could have occupied any one of them, on the fact of it, yet in spite of his alleged hardship he allowed them to be let to other persons one of whom is the defendant.

The defendant had only been in occupation for 3 clear months when he received 6 months notice to quit on the ground that the plaintiff bona fide required it for his own occupation. Only two months prior to issuing that notice the last of the flats had been let. Surely the plaintiff's own bona fide requirements must have been as strong in April and May 1978 when the flats were leased as they are now.

Where, after leasing his house, there is a change in the landlord's circumstances which creates some hardship or which aggravates an existing one and which can be alleviated by his occupying his own house there is strong evidence of a bona fide claim. It should be noted that the section does not speak of a bona fide requirement. In the instant case the plaintiff's alleged problem of an asthmatically infant was in existence two years before the flats were built and he nevertheless failed to occupy one of them. Yet two months after the last one is leased he seeks possession of the defendant's flat to relieve an alleged difficulty which had been in existence all along.

I am not greatly impressed. I have heard no medical evidence concerning the child's health and its attendances at the Nadi hospital. Before coming to a final decision I would like to hear evidence from the hospital regarding the child's health and the number of times it has attended the Nadi hospital from someone who has treated the child and has access to records of its attendance.

(Sgd) (J.T. Williams)
JUDGE

LAUTOKA,
Order:- Hearing 8/6/79

(J.T. Williams)
JUDGE