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Hakim v Dass [2001] FJHC 200; HBC64.2001 (21 June 2001)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 64 OF 2001

IN THE MATTER
of an application for possession of land under section 169 – 172
of the land Transfer Act, Cap.131.

Between:

ABDUL HAKIM
s/o Abdul Rahim
Plaintiff

And

ROSLYN ROSHNI DASS
d/o Donald Dass
Defendant

Mr. Gavin O’Driscoll for the Plaintiff
Defendant in Person

JUDGMENT

This is the Plaintiff’s application by Summons under s.169 of the Land Transfer Act Cap. 131 (the Act) for vacant possession of the flat comprised in
Certificate of Title No. 19087 and described as Lot 5 on D.P. No. 4560 in the Town of Suva in the Island of Vitilevu known as 10 Kava Place, Namadi Heights, Tamavua (the "property").

In support of his Summons the Plaintiff in his Affidavit stated that he is the registered proprietor of the property and the defendant has been his tenant, renting a residential flat on the said property at a monthly rental of $180.00. On 2 October 2000 a Notice to Quit was served on the defendant requiring her to vacate the property within one month. He further stated that she has been in arrears of rent and has failed to vacate and is still refusing to do so. On the hearing in Chambers the learned Counsel for the plaintiff stated that the defendant has not disclosed any right over the property nor has she any beneficial interest in it. She has admitted that she is just a tenant.

In the affidavit filed in reply the defendant has stated, inter alia, that she has been a tenant since May 1999 with no ‘formal agreement’. She says that the Plaintiff failed to issue her with receipts for rent paid to him for the period May 1999 to October 2000. She said that trouble arose when she asked for receipt for advance rent paid in October. Thereupon he issued a Notice of Quit. She thereafter stopped paying rent to him and instead paid it to Consumer Council of Fiji, Suva who told the Plaintiff to collect the rent from them. By letter dated 11 May 2001 the Council advised the Court, inter alia, that all rent paid to them amounting to $900 was uplifted by the defendant on 11th May after instructing the Council not to release the payment to the Plaintiff/landlord.

The Defendant says that she is being penalised to vacate the flat merely because she insisted that the Plaintiff issue her with receipts for rent paid to him. She says that the order sought be refused and that mesne profits should not be allowed. On the day of the hearing in Chambers the defendant said that the plaintiff has to have a reason for asking her to vacate. However, she says, if she has to vacate she would need three months time to do so.

In response to the defendant’s affidavit the plaintiff denied that she was uptodate with her rent. Her payments were in arrears and hence the Notice to Quit. He said that rent receipts were issued to her and these are annexures to his affidavit. He further says that he urgently requires the use of the said premises for himself and his family.

Consideration of the issue

This is a s169 application under the Land Transfer Act Cap.31. The procedure is governed by sections 169 to 172 of the Act.

It is for the defendant to ‘show cause’why she refuses to give possession as required under s172. There is no doubt that the plaintiff is the registered proprietor of the property and that entitles him to institute proceedings under s169. There are no complicated questions of fact to be investigated. The basic facts are not in dispute except the payment of rent. The rent aspect of the matter does not shut the plaintiff out from bringing an action under s169.

On the facts of this case there is no arguable defence. It is clear that the defendant fell into arrears of rent and for the reasons given by her she preferred not to pay rent direct to her landlord (the plaintiff). I find that in the circumstances she should not expect to remain in the property without paying rent direct to the landlord. The plaintiff was entitled to give her notice to quit. Until today for so many months she has lived in the property rent free and the plaintiff has lost hundreds of dollars in rent. She even uplifted $900.00 which she deposited with Consumer of Fiji which was payable to the plaintiff

On the evidence before me I find that the plaintiff is the registered proprietor of the property. Although there is no ‘formal agreement’ in writing between the parties it is clear that the defendant as a tenant fell into arrears of rent and hence notice to quit was served on her. I find that rent receipts were issued to the defendant. As required under Sections 171 and 172 of the Act. I find that the defendant has neither shown cause why she refuses to give possession of the property nor proved to my satisfaction any right to the possession of the property.

The plaintiff is therefore entitled to an order for immediate possession of the property and I do so order. However, execution is ordered to be stayed until 30 June 2001. I award costs against the defendant which is to be taxed unless agreed.

D. Pathik
Judge

At Suva
21 June 2001