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Natsun Pacific Ltd v Lum Moon Woot [2003] FJHC 283; HBC0268j.2002s (16 May 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0268 OF 2002

Between:

NATSUN PACIFIC LIMITED
Plaintiff

and

LUM MOON WOOT
Defendant

Mr. G. P. Lala for the Plaintiff
Mr. E. Veretawatini for the Defendant

JUDGMENT

By originating summons dated 25 June 2002 the plaintiff company is seeking an Order under s169 of the Land Transfer Act Cap. 131 (the ‘Act’) for vacant possession of Shop No. 50 situate at N.G. Patel Road, Nausori comprised in Certificate of Title No. 17207 (hereinafter referred to as the ‘property’)

The plaintiff is the registered proprietor of the property. The defendant was a monthly tenant of the previous owners of the property and now pays rent monthly to the plaintiff. Notice to quit was served on the defendant but he has failed to give vacant possession of the property. The plaintiff states in its affidavit that it requires the property for “general renovation”.

The defendant opposes the application and has set out his grounds in his Affidavit of Reply. In effect he relies on his ‘tenancy agreement’ (expiring in September 2003) with his previous landlord Jethasons Limited which was a company which went into liquidation. The property has now been purchased from the liquidator by the plaintiff which is now the registered proprietor.

Consideration of the application

Under the summary procedure in s169 of the Act the defendant is required under s172 to show cause why he refuses to give possession of the property ‘to the satisfaction of the judge a right to the possession’ of the land.

Because the plaintiff is the registered proprietor of the property it is entitled to under s169 to bring this action.

It is a fact that the previous company went into liquidation and the liquidator was appointed and he has finalized the liquidation by selling the property to the plaintiff. The liquidator informed the defendant by letter dated 27 March 2002 that ‘the property has been sold to Nat Sun Pacific Limited and all future rent to be paid to them’. The plaintiff has become the registered proprietor and with the liquidation completed the so called ‘tenancy agreement’ is of no effect and the defendant became a monthly tenant of the plaintiff thereafter. The facts reveal that he has made monthly payments to the plaintiff for which receipt has been issued. In these circumstances the defendant cannot rely on his alleged agreement document anymore. It is to be noted that the ‘agreement’ is not only not stamped but it is also not executed under the common seal of Jethasons Limited.

In the circumstances as the registered proprietor the plaintiff is entitled to terminate the tenancy by giving one month’s notice which it has done.

In the light of the facts as I find them on affidavit evidence, I see no merit whatsoever in the defendant’s many arguments which he put forward in opposing the application by the plaintiff.

I therefore find that the defendant has not shown cause to my satisfaction to enable him to remain in possession.

For these reasons, there will be judgment for the plaintiff that the defendant give immediate vacant possession of the property being shop No. 50 with execution stayed for one month as he is a shopkeeper and may need time to vacate. I award costs against the defendant in the sum of $300.00 (Three hundred dollars) to be paid within 7 days.

D. Pathik
Judge

At Suva
16 May 2003