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Premji v Lal [1975] FJCA 8; Civil Appeal No 70 of 1974 (17 March 1975)

IN THE FIJI COURT OF APPEAL
CIVIL JURISDICTION

CIVIL APPEAL No. 70 OF 1974

Between:

VALLABH DAS PREMJI
Appellant (Original Defendant)

and

VINOD LAL, NANKI and KOKI
Respondents (Original Plaintiffs)

H.M. Patel for the appellant
G.P. Lala for the respondents

Date of Hearing: 3rd March, 1975
Delivery of Judgment: 17th March, 1975

JUDGMENT OF THE COURT

Gould VP.

This is an appeal from an Order of the Supreme Court at Suva (made on a summons in Chambers under the provisions of section 169-172 of the Land Transfer Act, 1971) whereby the appellant was required t o give vacant possession of land in Ross St., Nausori formerly held by him as tenant of the respondents. It was claimed that the tenancy was a monthly one and that it had been determined by a valid notice to quit.

These sections and equivalent provisions of the Land (Transfer and Registration) Ordinance (Cap. 136-1955 Laws of Fiji) have been considered in a number of cases in this court and the Supreme Court. In Jamnadas & Co. Ltd. v. Public Trustee and Prasad Studios Ltd. (Civil Appeal No. 39 of 1972 - unreported) this court said –

"Under Section 172 of the Act the judge is required to dismiss the summons if the respondent proves to his satisfaction a right to possession and it is also provided that the judge may make any order and impose any terms that he may think fit. The dismissal of the summons is not to prejudice the right of a plaintiff to take any other proceedings to which he may be otherwise entitled.

In the past, on earlier but similar legislation, the Supreme Court has held that if the proceedings involve consideration of complicated facts or serious issues of law, it will not decide them on summary proceedings of this nature, but will dismiss the summons without prejudice to the plaintiff’s right to institute proceedings by Writ of Summons. Instances quoted by counsel are Caldwell v. Mongston (1907) 3 F.L.R. 58 and Perrier Watson v. Venkat Swami (Civil Action 9 of 1967 - unreported). The power of the court to adopt this approach has not been challenged so it is not material to consider whether it arises under section 172 of the Act or from inherent power to reject as unsuitable procedure, where another, comprehensive and better suited to the determination of controversial matters, is available."

In the present case the learned judge did not find it necessary to dismiss the summons under this special power.

The application was supported by an affidavit by the three plaintiffs (the present respondents) dated the 26th June, 1974; there was an affidavit by the defendant (the present appellant) dated the 17th July, 1974, an affidavit in reply dated the 30th July, 1974, by Vinod Lal, one of the plaintiffs, and on the 8th August, 1974, an affidavit for the plaintiffs by Mr. G.P. Lala, notwithstanding that he was the solicitor for the plaintiffs and appeared for them in the Supreme Court and in this appeal. There was finally another affidavit by the appellant dated the 5th of November, 1974, which was the date upon which argument was heard. The affidavits of both parties are of a poor standard; there has been a tendency to treat them as pleadings (which. they are not) and they contain a great deal of hearsay.

The burden of the appellant's "Grounds of Appeal" is his claim to have raised triable issues of a nature which ought to have induced the learned judge to refuse the application, leaving the respondents to bring an action for possession. The argument on some of these issues can be quickly disposed of. It is asserted that the respondents' summons did not comply with section 170 of the Land Transfer Act, 1971, which requires that "the summons shall contain a description of the land." The summons described the land as that "comprised in Lease No. 100007 situated in Ross St., Nausori". The appellant in his affidavits made no suggestion of any misunderstanding, but revealed full knowledge of the premises concerned. In the circumstances in our opinion the description was sufficient.

Secondly, the appellant claimed to have raised a triable issue in paras 4, and 5 of his affidavit dated the 17th July, 1974, which read –

"4. THAT sometimes in the month of January 1972 the first plaintiff and on behalf of the other two plaintiffs agreed verbally with me that I should occupy the said shop for a period of 5 years at a rental of $90.00 per month.

5. THAT at the time I requested the first plaintiff to give me a written tenancy since I was prepared to carry on doing business in the said premises for the agreed period but the first plaintiff assured me that the oral or verbal tenancy was good enough."

The first respondent in his affidavit of the 30th July, 1974, denied these allegations. The learned judge was not satisfied with the evidence of the appellant on the question and clearly did not regard it as proof "to the satisfaction of the judge of a right to the possession of the land" within the terms of section 172 of the Act, or as calling for the institution of an action. We have no reason to disagree with him and would add only that, in this court Mr. Patel, for the appellant, had no submission to make when asked if an oral promise of a tenancy for five years, without more, would be enforceable.

The only matter in the appeal which we think calls for serious consideration is a question concerning the notice to quit. The learned judge appears to have been satisfied with its validity and the proof of its service, for he said-

"The plaintiffs gave a notice to quit to the defendant on the 28th March, 1974 requiring him t o vacate the said property on 30th April, 1974. The defendant has failed to comply with this notice."

The notice was first mentioned in paragraph 2 of the respondents' affidavit in support of their summons, in the following terms:

"2. THAT we as Landlords gave a notice to one Mr. Vallabh Das Premji to quit and vacate the shop premises occupied by him. The said notice was dated 26th March, 1974 and same was delivered to him. We attach herewith marked "A" copy of the said notice."

The copy of the notice exhibited read-

"Mr. Vallabh Das Premji,

Ross Street,

NAUSORI.

Dear Sir,

Upon instructions from your landlords Vinod Lal, Nanki and Koki I hereby give you one month's notice to quit and vacate the premises occupied by you from them at Ross Street, Nausori on a monthly tenancy bases at a rental of $90.00 per month.

TAKE- NOTICE that you are hereby required to vacate the said premises on the 30th April, 1974 or on the last day of the month next after the service of this notice upon you.

You are required to vacate the said premises peacefully as failure on your part to do so will result in legal action being taken against you for your ejectment.

Yours faithfully,
R.I. KAPADIA

Per Sgd. R. Kirpal."

Paragraph 2 of this affidavit of course afforded no proof of the fact or date of service of this notice. Paragraph 10 of the appellant's affidavit however, contains an implied but clear admission that he was served with the particular notice annexed to the respondents' affidavit of the 26th June, 1974, and set out above. The paragraph reads:-

"10. THAT the plaintiffs shall be put to strict proof as to the date of service of the notice dated 26th March, 1974, annexed to the plaintiffs' affidavit filed herein."

This may be a strange paragraph to find in an affidavit, but, while admitting the form and receipt of the notice dated the 26th March, 1974, it clearly does not admit the date of service, which, up to that point in the proceedings had not even been asserted by the respondents. Paragraph 4 of Mr. Lala's affidavit was evidently intended to remedy this. It reads -

"4. THAT annexed hereto and marked "A" is a letter from Bailiff Shiri Ram Sharma certifying that he served the said notice to the defendant on the 28th day of March, 1974."

The letter was as follows -

"Messrs. G.P. Lala & Co.,

Solicitors,

Suva,

Dear Sirs,

Re: Vinodlal & Ors. v. Vallabh Das Premji

This is to confirm that I have served a notice to quit on Vallabh Das Premji on the 28th day of March 1974 which was issued through Mr. R.I. Kapadia Solicitor for the landlords and which said notice was dated 26th March, 1974.

(Sgd.) S.R. Sharma
S.R. Sharma of Suva, Bailiff."

The final affidavit of the appellant, dated the 5th November, 1974, takes the point that this paragraph is hearsay, which of course it is, so far as it is relied upon t o establish the date of service. Apart from that, the Bailiffs letter does not purport to identify a copy of the notice served.

This is a matter which, properly considered, must have been fatal to the respondent's application in the Supreme Court. Proof of service of a notice to quit on a date when it will, according to its terms, be effective to terminate the tenancy, is essential to the jurisdiction of the court, in a case of this nature, to make the ejectment order applied for. Section 169 of the Act lists among the persons who may avail themselves of this summary procedure "a lessor against a lessee or tenant where a legal notice to quit has been given." Its legality in this context must include its effectiveness, and to the decision of that question the date of its service is in most cases, and certainly is in the present case, a vitally relevant consideration. Though these applications are directed to be made in Chambers, they are not interlocutory and are concerned with the important matter of the right to the possession of land, and where the date of service of a notice to quit is in issue, it would be quite wrong, in our opinion, to seek to establish it by statements of information and belief. Paragraph 4 of Mr. Lala's affidavit does not even take the matter that far.

In the course of the argument counsel for the appellant questioned the validity of the notice to quit on another ground and while it is not strictly necessary for us, on the view we take, to decide the question, it may be helpful to the parties if we express a provisional opinion.

It is submitted that the notice is bad for uncertainty. It has obviously been intended to follow a widely accepted form of notice which is expressed in the alternative. Unfortunately some words have been omitted. When the notice reads "or on the last day of the month next after the service of this notice upon you," what was very likely intended was-"or at the expiration of the month of your tenancy which will expire next after the end of one month from the service of this notice on you." An example of this form appears in Morris Hedstrom Ltd. v. Kanji Ratanji Jogia (1966) 12 F.L.R. 176. A like form was approved in Sidebotham v. Holland [1894] UKLawRpKQB 195; (1895) 1 Q.B. 375, 389, and see the forms in Woodfall on Landlord and Tenant (25th Edn.) p. 1656 and FOA - Law of Landlord and Tenant (7^th Edn.) p. 598.

The argument on uncertainty is that the recipient of the notice could not be sure whether the alternative meant that he was to go on the last day of the month in which he received the notice. Though the subject of notices to quit is fraught with what Smith LJ. in Sidebotham v. Holland (supra - p.389) called "unmeritorious technicalities", "too deeply rooted in our law to be now got rid of", it is also said that if possible, a notice to quit will be construed so as to make it effective, and inaccuracies, obviously opposed to the intention of the party giving it, will be corrected – see 23 Halsbury's Laws of England (3rd Edn.) 522, para. 1173. Also (op. cit. - para 1172) each case must depend on its own facts and circumstances.

The circumstances in the present case include what is common ground, that the monthly tenancy was calendar monthly, the last day of each period being the last day of each calendar month. It must also be accepted for the purposes of this present discussion that the notice was served, as the respondents say, on the 28th March, 1974. The circumstances cannot be evaluated in vacuo and the date of receipt of a notice may well have a bearing upon its interpretation by the recipient. On that basis we have no doubt that there was no room for misunderstanding by the appellant, who would hardly be likely to construe it as giving him an alternative of only three days. The more grammatical meaning of the words "month next after service of this notice" should prevail, meaning the month of April, even though in the result there was no alternative. The appellant would not be left in any doubt. We are satisfied therefore that on the basis we have outlined the notice was valid.

The question of the order to be made by this court now arises. As we have held, the lack of proof of the -date of service is fatal to the application. Mr. Lala for the respondents, asked us to remit the case to the Supreme Court to give him an opportunity of remedying the defect, on the aground that, the appellant 's denial had been confusing. On the contrary, paragraph 10 of the appellant's affidavit so far as it touches the date of service, is very clear. Mr. Lala did attempt to answer it in his own affidavit, but ineffectually.

Though we greatly regret any prolongation of this litigation, we have no alternative but to allow the appeal with costs. The Order in the Court below is therefore rescinded and the application dismissed - no order for costs appears to have been made there, and we do not interfere with that. By virtue of section 172 of the land Transfer Act the dismissal does .not prejudice the right of the respondents to take any other proceeding to which they may be otherwise entitled, but, in case that course is desired we give leave to proceed again under the relevant sections of the Act.

VICE PRESIDENT