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Chand v Ali [2005] FJHC 246; HBC0116.2004 (14 February 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0116 OF 2004

BETWEEN:

BINAY CHAND & PRAVEEN CHAND
Plaintiff

AND:

ANJUM ALI
Defendant

Counsel: Ms S. Devan - for Plaintiff
Mr. N. Lajendra - for Defendant

Date of Hearing & Decision: 14th February, 2005

EX TEMPORE DECISION

Introduction:

This is the plaintiffs’ application pursuant to Section 169 of the Land Transfer Act for an order that the defendant be ejected from that part of land which he now occupies described more particularly as Lot 4, Tokotoko, Navua, Certificate of Title No. 18535 and 18536.

Background:

The plaintiffs are the registered proprietors of the land. The defendants have been occupying the land and premises for approximately 4 years.

On the 22nd of January 2004 the defendant was served with a notice to quit. He failed to vacate and that has resulted in the present proceedings.

The property has been managed during the material time by Mr. Lakshman on behalf of the California based owners. Mr. Lakshman is a qualified lawyer. He negotiated the oral tenancy and he acted as general agent on behalf of the plaintiffs.

The tenant defendant claims:

1. That he had an oral long term agreement for the occupation of this property; and/or
   
2. That he had a right of first refusal or right of first option to purchase the property in the event of sale of the property.
   

The plaintiffs deny both of those contentions. They say that this was always a month to month tenancy and they never gave the tenant any right of first refusal or right of first option over the property.

The Law

Section 169 Applications were the subject of a recent judgment of the Fiji Court of Appeal in Prasad v Hamid, Civil Appeal No. ABU 0059 of 2003, a decision delivered last March.

At page 4 of that judgment their Lordships commented:

“As has been remarked in other cases, provisions of this kind are common in many common law countries. There is a substantial amount of authority dealing with them and with the principles which apply when the procedure of summary judgment is invoked. The all important question always is whether the Defendant can prove to the satisfaction of the judge a right to the possession of the land. These words have been the subject of some judicial gloss both in Fiji and elsewhere. For present purposes it is sufficient to refer to a decision relied upon by the primary judge in Morris Hedstrom Limited v Liaquat Ali (Action No. 153/87) where the Supreme Court said (at page 2) under section 172 the person summoned may show cause why he refuses to give up possession of the land and if he proves to the satisfaction of the Judge a right to possession or can establish an arguable defence the application will be dismissed with costs in his favour. The Court added that was not to say that the final or incontrovertible proof of a right to remain in possession must be adduced. What was required was that some tangible evidence establishing a right or supporting an arguable case for such a right, must be adduced.”

The Courts are always reluctant to give summary judgment in cases where a defendant shows that he has some reasonably arguable defence or a case which requires to be heard at a proper trial of the proceedings.

The Evidence

Mr. Lakshman, the plaintiff’s agent, a trained lawyer in his evidence in chief, in answering questions in cross-examination, on re-examination and in answer to questions from me was certain that this oral tenancy was a month to month one.

He commented that he had a good deal of sympathy for the tenant defendant because the tenant defendant had been particularly easy to deal with and had been a very good person throughout the term of his tenancy. For that reason I am minded to completely believe what Mr. Lakshman says because in a sense it goes against his genuine concern for the tenant.

The tenant defendant confirmed that he had been a tenant on the property for some four (4) years. He said that as far as he was concerned he was looking for a long term tenancy but he confirmed that he entered the property on a month to month basis. Further he said that he paid his rent on a month to month basis. He sought to refer to Exhibit B in his primary affidavit in response to prove his long term lease. But that letter was dictated by the agent witness Mr. Lakshman at a time after the notice to quit had been given. Mr. Lakshman said the letter was a reference for a good tenant not a confirmation that there was any kind of long term tenancy given to this defendant.

In short for these reasons I find that the defendant tenant while he wanted to stay on the property for a long time never actually made a contract in those terms with the plaintiffs or with the agent. I am clear that his tenancy was based on a month to month consideration.

The second issue relates to whether or not there was a right of first refusal or right of first option given to the defendant.

Again I rely heavily on the evidence of Mr. Lakshman the agent a trained lawyer. He was clear that at no time was any right or option written up. He was equally clear that at no time was there any oral contract for such a right of first refusal or option. Rather it was his recollection that on one occasion the tenant defendant became interested in purchasing the property and there may have been some discussions with one of the plaintiffs about a price but indeed that individual discussion on a purchase of the property never came to anything.

He was clear that the tenant may have been interested in such a purchase of the property but that the plaintiffs never entered into any such agreement with him.

Accordingly for these reasons in the present case the defendant tenant has not satisfied the necessary proof and provided the court with sufficient evidence so that I can say with confidence that he has a right to the possession of the land or indeed an arguable case about such possession. Accordingly I am driven to the conclusion that the application by the plaintiffs must be granted.

Mesne Profits

The plaintiff made application for payment of mesne profits representing unpaid rent down to the date of vacation of the premises. I take the defendant tenant as a man of integrity. He advises the court that the last rental payment he made was for the period of December 2003 and that means that there is some 14 months of rent currently outstanding. Further he proposes a three month period within which to vacate the premises. Accordingly I think its fair that he be given that three months provided the mesne profit is completely paid up including the notice period. I order the defendant to pay the plaintiff by the 21st of February 2005 a sum equivalent to all rental due to the plaintiffs for the period December 2003 to the 1st of June 2005. Provided that payment is made the order of eviction is stayed until the 1st of June, 2005.

Costs

After discussion with counsel and by consent there can be a global costs order in the sum of $750.00. The defendant is to pay the plaintiff the sum of $750.00 in full and final settlement of all costs on or before the 1st of March 2005.

Gerard Winter
JUDGE

At Suva
14th February, 2005