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Fiji Adventists Farmers Cooperative Society Ltd v Singh [2003] FJHC 9; Hbc0027j.2003s (14 May 2003)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 27 OF 2003S

Between:

FIJI ADVENTISTS FARMERS
COOPERATIVE SOCIETY LIMITED
Plaintiff

and

JAGINDAR SINGH
Defendant

V. Maharaj for the Plaintiff
M.A. Khan for the Defendant

JUDGMENT

These are summary proceedings for possession of land brought pursuant to Section 169 (c) of the Land Transfer Act (Cap 131-the Act).

The Plaintiff is the registered proprietor of Lease 28/158. The Defendant occupied the property, Lot 1 on DP 274, by virtue of registered sub-lease No. 125859 which expired on 1 January 2000.

On 26 January 2002 the Defendant was given notice to quit however he has remained in occupation.

Under the provisions of Section 172 of the Act the onus is on the occupier to show a right to remain in occupation.

Mr. Khan offered four arguments in support of the Defendant’s right to remain.

The first argument was that the sublease conferred on the Defendant a right to renew. No copy of the sub-lease was exhibited, no mention of a right to renew is made in the Defendant’s affidavit in opposition and Mr. Maharaj did not accept that the Defendant had a right to renew. In the absence of any supporting evidence this submission must fail.

The second submission was that the Plaintiff, by accepting payment of rent following expiry of the sub-lease had accepted its renewal. As is clear however from paragraphs 4 and 12 of the Defendant’s affidavit what happened was that the Defendant posted the rent to the Plaintiff who had previously refused to accept it. Mr. Maharaj confirmed that the rent had been received and had been paid into a trust account. I do not find any unequivocal acceptance of rent by the Plaintiff and do not find that the sub-lease has been renewed.

The third submission was that this being native land the Native Land Trust Board should have granted its permission to bring these proceedings by virtue of the requirements of Section 12 of the Native Land Trust Act (Cap 134). With respect, this argument is misconceived. Section 12 requires consent before a lessee alienates or deals with the land comprised in the lease. It is designed to prevent the Board acquiring a new lessee without its consent. The section does not require consent of the NLTB to regain possession of the land from a sub lessee whose sub-lease has expired.

The final argument was that the Plaintiff lacked good faith in that it was seeking an exorbitant premium to renew the sub-lease when it knew full well that the Defendant had invested heavily in the property.

According to a letter sent by the Plaintiff to the Defendant in February 1990 (Exhibit A to the Defendant affidavit) the Plaintiff was offering the Defendant a 75 year sub-lease of the property at a rental of $500 per annum for the first five years upon payment of a premium lump sum $18,000. This proposal does not strike me as being at all unreasonable and I do not find it to be evidence of want of good faith.

A sub-lessee who invests heavily in the leased property does so at risk. At the end of the lease the investment may be lost if it cannot conveniently be removed. There is no general rule that a sub-lease must indefinitely be renewed and there is no general rule that the lessor must compensate the lessee for non removable improvements forfeited at the expiry of the sub-lease. In any event a right to compensation is not a right to continued occupation.

I do not find that the Defendant has discharged the onus placed upon him by the Act. Accordingly there will be an order for possession in 28 days.

M.D. Scott
Judge

14 May 2003