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Smith v Kumaraiya [1995] FJHC 129; Hbc0309j.94s (20 July 1995)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 0309 OF 1994

IN THE MATTER of the Land
Transfer Act, Section 169.

BETWEEN:

ANTHONY ALWYN HARCOURT SMITH
Of Avalon Beach, Sydney, Australia
- Plaintiff

AND

KUMARAIYA, ENKATESU and NAGAIYA
(a.k.a. MERAIYA) all of Nuku Estate,
Natewa Bay, Vanua Levu
- Defendants

J. Howard for the Plaintiff
M. Raza for the Defendants

Dates of Hearing: 10th November 1994, 7th, 28th February,
3rd March 1995
Date of Judgment: 20th July 1995

JUDGMENT

The Plaintiff is the registered proprietor of the land contained in Certificate of Title No. 3958 at Waimotu situated in the district of 'Natewa' on the island of Vanua Levu. The area of the land is 500 acres and the Plaintiff who is the Trustee of the estate of the late Frank Harcourt Smith of Waiyevo, Taveuni claims that the Defendants are unlawfully occupying the land.

The Defendants have for many years and particularly during the latter years of the Plaintiff's father's life lived on the land under a share farmer arrangement at an agreed rental of $100.00 per month.

The Plaintiff's father by a Will made in 1960 and a codicil executed on 27th June 1967 provided the Defendants with a first option to purchase the land, in the event the property is sold for a price of £9,000.00.

The Defendants have for many years allowed the rent to lapse into substantial arrears with gaps up to four years between payments.

The letter signed by the First Defendant dated 2nd October 1984 which is annexure 'B' to an affidavit of the Plaintiff sworn on the 21st of October 1994 confirms that as far back as 1984 the Defendants "have accumulated the long overdue rent for which we apologise".

The Defendants have not paid any rental in respect of the property since at least December 1991, this in spite of a letter from the Plaintiff's solicitors dated 1st December 1992 reminding them of an amount of $1,100.00 said to be owing for the months January to September 1992 and which is annexure 'B' to the affidavit in support of the Originating Summons herein sworn by the Plaintiff on 15th June 1994.

By Notice to Quit issued on 18th February 1994 and duly served on the Defendants they were requested to quit and to deliver up vacant possession of the land to the Plaintiff. They have failed to do so.

Service of the Notice to Quit and the substantive rental arrears are not disputed by any of the Defendants in the affidavits they have filed in these proceedings.

At one stage the First Defendant denied that the Plaintiff is the registered proprietor of the land in an affidavit which he swore on the 7th of January 1995 which he said was on behalf of the other named Defendants who are his sons and on whose behalf he claimed he was entitled to swear the affidavit.

In an earlier affidavit by the Defendant Nagaiya aka Meraiya it was admitted on behalf of all Defendants who he said had authorised him to swear the affidavit, that the Plaintiff is the registered proprietor of the land.

If there was any doubt about this it is resolved to my satisfaction by an affidavit of Gopal Krishna f/n Madhu Ram in the employ of the Plaintiff's solicitors sworn on the 2nd of March 1995 which annexes a true copy of CT3958 confirming that the Plaintiff is the registered proprietor.

The Defendants appear to resist the Plaintiff's application on equitable grounds. They say that for many years they cared for and when he felt ill nursed the Plaintiff's father who had promised them he would not forget them and would leave the land in consideration for their services to him.

They say that in the circumstances they have at law a good and valid claim to the land and that the Plaintiff has never lived on the land and does not intend to occupy it.

As to this the Plaintiff in an affidavit sworn on the 21st of October 1994 says that he has not lived on the land since his father's death because due to the Defendants' occupation he was not able to. Further his son, being a beneficiary of his father's Will resides in Fiji and is waiting to occupy, develop and farm the land which is presently run down and neglected.

The Plaintiff also says that the property has never been and is not for sale although he, confirms that he will abide the covenant of his father's Will in the event of the sale of the land.

The Defendants are seeking a stay of this action until the following are determined:

(a) whether the Plaintiff has an indefeasible title; and

(b) as and when their rights are determined by the Agricultural Landlord & Tenant Tribunal.

In their submissions the Defendants claim that they are tenants within the meaning of the definition set out in the Agricultural Landlord & Tenant Act Cap. 270 which provides in Section 37 that on the facts of this case the Plaintiff should have given them a three months' written Notice to Quit. Sub-section (1)(c)(i) and (ii) stipulate three months' written Notice to Quit.

(i) where the tenant is not cultivating or operating such holding according to the practice of good husbandry and the interests of the landlord are materially prejudiced thereby; or

(ii) if any part of the rent in respect of the holding is in arrear for a period of three months or more or if any lawful term or condition of the tenancy which is capable of being remedied is not performed or observed by the tenant.

I cannot accept this submission because no declaration of tenancy has been made by the Agricultural Landlord & Tenant Tribunal under Section 5(i) of the Act. Further there is no instrument or contract of tenancy under Section 8(1) of the Act and the Defendants have not applied to the Tribunal for relief against eviction.

The Notice to Quit was not issued pursuant to Section 37(1) nor was it required to be. I therefore reject this submission.

It is fundamental to any tenancy that the tenant pay rent and it is implicit in the Agricultural Landlord & Tenant Act that for a tenancy to exist a person must be lawfully holding land under a contract of tenancy and paying rent. The Defendants do not dispute that they have not made any such payments since at least December 1991.

In support of their claim to remain on the land the Defendants rely on two cases Azmat Ali v. Mohammed Jalil [1982] 28 FLR 31 and Dharam Lingam Reddy v. Pon Samy & Veliamma reported in the same volume of the Fiji Law Reports at p.69.

Both of these cases however are distinguishable on the facts from the instant case in that both involved Section 169 proceedings which were instituted subsequent to the Defendants having applied to the Tribunal established under Agricultural Landlord & Tenant Act. In Ali v. Jalil application to the Tribunal was made on 21st April 1980 with the hearing set down for 26th August 1981 and the Summons instituting Section 169 proceedings was issued on 28th May 1981.

In Reddy v. Veliamma the Applicant applied to the Tribunal on 16th February 1981 and the Section 169 proceedings were issued on 20th March 1981. In both these cases the Fiji Court of Appeal gave this fact considerable weight when declining to finally determine the matter pending the forthcoming decisions of the Tribunal.

In addition the land involved in both these cases was leasehold land whereas in the instant case it is freehold. Also in both instances the Defendants had made application to the Tribunal under Section 18 of the Act which is not the case here.

In Kulamma v. Manadan (1968) 2 WLR 1074 the Privy Council confirmed that a share farming agreement does not necessarily confer on a share farmer an interest in land.

In Ali v. Jalil at page 36 C the Court held that the onus was on the Defendant to show cause why he refused to give up possession and that the Defendant must prove to the satisfaction of the judge a present right to possession. It is not enough to show a possible future right to possession.

The material in this case satisfies me that the Defendants have not shown any such right. All they have established is a conditional proprietary right to purchase. In view of their arrears of rental the evidence satisfies me that the Defendants have not established a right to possession. There are no complicated questions of fact which cannot be adequately dealt with on summary proceedings in chambers. Therefore, following the Court of Appeal decisions in Gurdial Singh v. Shiu Raj Civil Appeal No. 44 of 1982, unreported judgment dated 30th November 1982 and Ram Narayan v. Moti Ram Civil Appeal No. 16 of 1983, unreported judgment dated 28th July 1983 I hold that the Plaintiff is entitled to have his application decided under Section 169. The Defendants' conditional proprietary right to purchase the land in the event of its sale which is not disputed by the Plaintiff will survive their eviction.

I therefore make an order in favour of the Plaintiff in terms of the Summons dated 23rd June 1994. The Defendants must also pay the Plaintiff his costs to be taxed if not agreed.

JOHN E. BYRNE
JUDGE

Authorities referred to in judgment:

Azmat Ali v. Mohammed Jalil [1982] 28 FLR 31
Dharam Lingam Reddy v. Pon Samy & Veliamma [1982] 28 FLR 69
Kulamma v. Manadan (1968) 2 WLR 1074
Narayan v. Ram Civil Appeal No. 16 of 1983
Singh v. Raj Civil Appeal No. 44 of 1982.

No other authorities were referred to in argument.

HBC0309J.94S