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Cul (Fiji) Ltd v The Roti Shop Ltd [2004] FJHC 26; HBC0289J.2004S (27 October 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0289J.2004S

BETWEEN:

CUL (FIJI) LIMITED
a limited liability
company incorporated in Fiji and having
its registered office at c/- Young & Associates,
Solicitors, 2 Saku Lane, Lautoka.
PLAINTIFF

AND:

THE ROTI SHOP LIMITED,
a limited liability
company incorporated in Fiji and having its
registered office at FNPF Place, Dolphins
Food Court, Victoria Parade, Suva.
DEFENDANT

Counsel for the Plaintiff: T. Tuitoga: Munro Leys
Counsel for the Defendant: Ms L. Vaurasi: Muaror & Co.

Date for the Judgment: 27 October, 2004
Time for the Judgment: 9.30 a.m.

JUDGMENT

This is a section 169 application.

The Plaintiff holds a 10 year lease (Lease No. 460534) with effect from 1.12.1998 over Lot 1 DP 6617 on C.T. 24859. The Defendant runs and operates “The Roti Shop” from part of the Plaintiff’s property under a sub-lease, paying a monthly rent of $400.00. There are no lease documents, only an oral agreement. On 28 May 2004, the Plaintiff served Notice on the Defendant to quit. The Defendant must, under s.169 proceedings, show cause why he should not give up possession.

The Defendant first argued that the Plaintiff, to succeed under s.169, must bring itself into one of the three categories under it, namely, as

“(a) the last registered proprietor of the land;

(b) a lessor with power to re-enter where the lessee or tenant is in arrear, for such period as may be provided in the lease and, in the absence of any such provision therein, where the lessee or tenant is in arrear for one month, whether there be or be not sufficient distress found on the premises to countervail such rent and whether or not any previous demand has been made for the rent;

(c) a lessor against a lessee or tenant where a legal notice to quit has been given or the term of the lease has expired.”

According to the Defendant, the Plaintiff’s head lease, although purportedly is for ten (10) years, had only an initial 5 year term with option to renew. There being no evidence of the renewal for a further term of 5 years, the Defendant argued that the presumption is that the head lease had expired in January 2004 thus making the Plaintiff’s Notice to quit of 28 May 2004, invalid since it was no longer the “lessor” for the purpose of s.169 (c) of the Land Transfer Act.

I am not persuaded by the Defendant’s argument. While it is true the Plaintiff’s lease carried a renewal option clause after the first 5 years, the details and the procedures to be followed by the parties before re-newal, as set out in paragraph 4 of the Lease, had to be activated at lease 9 months before January 2004 to even allow the Plaintiff to continue its tenancy after January 2004. The presumption upon one’s reading of paragraph 4 of Lease 460534 is in favour of the Plaintiff and the re-newal in accordance with the parties intentions for a 10 year term.

The Defendant next argued that there was an oral agreement between the parties that the tenancy was to be for 3 years. In his affidavit of 21 September 2004, Hari Prasad (f/n Khrishna Prasad) a director of the Defendant company, stated that the oral 3-year tenancy agreement was reached between the parties, after approval had been obtained from the US headquarters of the Plaintiff. The simple fact of the matter is, as Counsel for the Plaintiff correctly pointed out, there are no evidence produced to this Court to substantiate the Defendant’s claim. The tenancy can be no more than a periodic, in this case, a monthly one. The law in such a situation is clear. A monthly tenancy does not become a tenancy for 3 years merely by the inclusion of expression, showing that the parties had contemplated a tenancy of a longer period. It remains a tenancy that is renewable on a monthly basis. So long as it is a periodic tenancy therefore, then it is determinable by notice to quit.

Finally, the Defendant referred to section 55 of the Fair Trading Decree arguing that the head lessor is guilty of unconscionable conduct by, through the Plaintiff, forcing the Defendant to close its business, in favour of a competitor which will shortly open in the new complex next door. The head lessor is not a party to this proceedings. At any rate, there are no evidence to substantiate the Defendant’s allegations.

In the end, after having read the evidence and listened to Counsel’s submissions, I am satisfied that the Defendant has not discharged the onus required of it under section 169.

Order is made for vacant possession.

Costs of $200.00 against the Defendant.

F. Jitoko
JUDGE

At Suva
27 October 2004