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Ismail v Dass [2005] FJHC 392; HBC0219.2005 (29 November 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0219 OF 2005

BETWEEN:

MOHAMMED ISMAIL
Plaintiff

AND:

ROSELYN DASS
Defendant

Counsel: Mr. Arjun – for Plaintiff
Defendant – In Person

Date of Hearing & Decision: 29th November, 2005

EX TEMPORÉ DECISION

This is an Ex temporé Decision given after a short Chambers Hearing and as such I reserve the right to perfect the judgment once it has been prepared for me.

This is the plaintiff’s application by summons under Section 169 of the Land Transfer Act, Cap. 131 (The Act) for a vacant possession of the flat comprised in land described as Crown Lease No. 3480 being Lot 17 Section 30, Samabula North on Plan S1117 situated in the district of Suva in the Province of Rewa (the property).

In support of the summons the applicant has filed an affidavit stating that he is the registered proprietor of the land, that the defendant occupies the premises at 132 Lakeba Street, Suva as a monthly tenant. The monthly rental is $280.00. At the time of filing the application in May of this year the defendant had failed to pay rent between November 2004 and May 2005, an arrears of $1,960.00 had accumulated.

In the affidavit in reply Ms Dass confirms that she has no interest in the property other than as a month to month tenant. She does not deny that she was in rental arrears. She says that the plaintiff failed to issue her with receipts for rent paid, the property is in poor condition, it is an illegal rental building not licensed by the Suva City Council and that the landlord has treated her poorly by cutting off her jointly shared power and water services.

At an appearance with me this morning she advised that Mr. Nawaikula had been instructed to represent her. She sought an adjournment of this hearing to enable Mr. Nawaikula to be present.

I refused that adjournment as I was not satisfied that it was made on proper grounds and that it was unreasonable to adjourn this matter again. Mr. Nawaikula may have filed documents. He has given no excuse for his absence before me this afternoon. The matter was originally scheduled to be called this morning and he failed to appear. Apparently the defendant contacted him by phone and was left with a message that she should ask for an adjournment on his behalf of these proceedings. That is simply unsatisfactory. The adjournment was refused.

Decision

This is a summary procedure under the Land Transfer Act governed by Sections 169 to 172 of the Act.

For the defendant to succeed she has to show cause why she refuses to give possession.

I am satisfied that the applicant is a registered proprietor and that entitles him to commence these proceedings.

I am equally satisfied that this a relatively straightforward case of a tenant falling into arrears and a landlord seeking to reclaim the premises. Those basic facts are not in dispute.

I have considered the affidavit materials provided by the defendant. I see absolutely no defence contained in that material. I find that in the circumstances she should not expect to remain in the property without paying rent.

I find that in fact no rent has been paid as described by the plaintiff in his affidavit from November of 2004.

This is a month to month tenancy and accordingly while granting the application under Section 169 I will give the defendant until Friday the 6^th of January, 2006 to vacate the premises.

Conclusion

There will be an order in terms but the execution of the order will be stayed until midday on Friday the 6^th of January, 2006.

It is appropriate that there be a small award of cost and I award costing to the defendant in the sum of $250.00.

Gerard Winter
JUDGE

At Suva
29th November, 2005