IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 132 of 2006

NO. 140 OF 2006

BETWEEN:

UNIQUE APPARELS LIMITED
a limited liability Company having its registered office at Nasekula Road, Labasa
Plaintiff

AND:

MOHAMMED HAROON f/n Shiu Narayan formerly of Nadi but now of Sydney Australia, Businessman trading as A.H. FASHION, Nadi
Defendant

SHERANI & Co. for the Plaintiff
IQBAL KHAN & ASSOCIATES for the Defendant

Date of Hearing: 7 July 2006
Date of Judgment: 14 July 2006

JUDGMENT

Background

[1] The defendant operates a drapery business from premises he rents on the 1st floor of a commercial building in Clay Street, Nadi Town, comprised in Native Lease No. 26821 ("the property"). The plaintiff owns the property. By originating summons dated 17 May 2006 it seeks an order for possession under Section 169 of the Land Transfer Act Cap.131, ("the Act").

Defendant’s onus of proof

[2] It is not in dispute that the plaintiff’s application complies with the threshold requirements of Section 169 of the Act. The plaintiff is the last registered proprietor of the property occupied by the defendant. The validity of the notice to quit served on the defendant is unchallenged. In the absence of the defendant being able to discharge the onus placed upon him by Section 172 of the Act, the plaintiff is prima facie entitled to an order for possession.

[3] Section 172 of the Act reads:

"172. If the person summoned appears he may show cause why he refuses to give possession of such land and, if he proves to the satisfaction of the judge a right to the possession of the land, the judge shall dismiss the summons with costs against the proprietor, mortgagee or lessor or he may make any order and impose any terms he may think fit:

Provided that the dismissal of the summons shall not prejudice the right of the plaintiff to take any other proceedings against the person summoned to which he may be otherwise entitled…".

[4] Under this section the judge is required to dismiss the summons if it is proved to her satisfaction that the person to whom it is directed has a right to possession of the property: Dharam Lingham Reddy –v- Pon Sami & Ors (FCA Civil Appeal No. 42 of 1981 p.17).

Evidence required to show cause

[5] The principles applicable for analysis of the evidence in section 169 proceedings are well known and settled. In their discussion of Section 169, the Court of Appeal in Ram Devi –v- Satya Nand Sharma & Anr (Civil Appeal No. 46 of 1985), held at page 5 of the judgment that:

"It is true that orders under that section will not be made on disputed facts or in complicated law situations – but that must mean bona fide fact disputes arising from the evidence, or legal points which cannot be simply identified". (emphasis added)

[6] Judge Jiten Singh in Atul Kumar Ambalal Patel & Ors –v- Gita Narayan HBC 0134, 135 & 136 of 2004 at page 2 described the proof required as follows:

"The defendant must show the right to possession on affidavit evidence and which would preclude the granting of an order. What the defendant has to show is some tangible evidence which establishes a right to remain in possession and which supports an arguable case for such possession".

[7] In a recent judgment the Court of Appeal said of the evidence required from the defendants::

"Put another way they had to show something which was worthy of further investigation and which required the examination of witnesses" 

"……......whether the evidence disclosed factual issues of a sufficient kind to require a hearing on the merits".

Natsun Pacific Limited –v- Suresh Hansjit Minakshi Ben (Civil Appeal No. ABU 0015 of 2005 S @ paragraphs 31 & 33).

The defendant’s evidence and submissions

[8] In his affidavit opposing the summons, filed on 22 June 2006, ("1st affidavit") the defendant admits that he has been illegally and unlawfully occupying the property. He also states that there are proceedings pending between the parties relating to the same subject matter of these proceedings in the Nadi Magistrate’s Court which the plaintiff failed to disclose in its supporting affidavit hence the summons herein ought to be dismissed.

Annexed in the 1st affidavit are the pleadings of the pending action in the Nadi Court. Also annexed is his affidavit in support of an Ex-parte Notice of Motion, which is marked Annexure B, ("2nd affidavit") filed in the Nadi Court action.

[9] Learned counsel who appeared on instructions for the defendant when the summons was heard conceded that the Nadi Court does not have jurisdiction to entertain the action before it. No arguments were advanced in support of the allegations made in the defendants 1st affidavit, the effect of which is that the existence of the pending proceedings in the Nadi Court was of itself sufficient cause why he should not give up vacant possession. The proposition is without merit in any event. 

[10] Ms.Khan who appeared for the defendant raised arguments grounded in equity and estoppel. She submitted that the contents of the 2nd affidavit establishes good cause. In summary she submitted:

(i) the evidence disclosed a tenancy in equity. The defendant contends that the plaintiff allowed him to continue occupation of the property and the parties renegotiated a tenancy agreement, the draft of which is annexed in the 2nd affidavit, and notwithstanding that the draft agreement is not executed, there is a valid tenancy created for a term of two years because both parties have acted on it.

(ii) the defendant relied on representations made by the plaintiff to his detriment and has expended $20,000-00 on the property constructing steps and re-designing the concrete ceiling.

[11] The defendant’s evidence supporting grounds (i) and (ii) above is not apparent from the assertions of fact made in the eight paragraph’s of the 1st affidavit. The issues arising from Ms.Khan’s submission at the hearing were not canvassed in the written submissions prepared by the plaintiff’s solicitors. The written submissions were confined to what appeared to be the only objection the defendant was raising against the summons ie. that the failure by the plaintiff to disclose the pending Nadi action constituted sufficient cause and accordingly the summons be dismissed. 

[12] Mr Anu Patel who appeared for the plaintiff, on instructions, submitted in reply that the defendants claim of a right to occupy depended upon an unexecuted draft tenancy agreement which was illegal for non-compliance with legislative consent provisions relating to dealings in native land. The lack of NLTB consent, he contended was fatal: reliance on Chalmers –v- Pardoe [1903] 3 All ER 552. As such any rights in equity claimed were void abinitio. He also submitted that the defendant’s evidence had not established cause. At best, he said the defendant was a monthly tenant, whose tenancy was brought to an end by valid notice.

[13] If I were to accept all of the defendant’s evidence unchallenged by the plaintiff, the defendant fails to satisfy me that he has a right to remain in possession and has an arguable case for such possession. The conclusions which Ms.Khan invites me to make are simply unsupported by the evidence he has proferred. The mere allegation of the existence of a competing claim or of a defence to the registered proprietors claim to possession is insufficient. Apart from the paucity of evidence supporting the allegation and the alleged agreement he asserts in paragraph 4 of his 2nd affidavit, the evidence falls far short of raising bona fide factual disputes worthy of further investigation or of a sufficient kind to require a hearing on the merits.

[14] The agreement alleged by the defendant is disputed. The only documentary evidence he relies on in support of the bare assertion made is an unsigned document he instructed his solicitors to prepare. There is no tangible evidence of the plaintiff’s involvement at all in the preparation of the draft document.

[15] The submission that the plaintiff allowed the defendant to remain in occupation, renegotiated a new tenancy and in reliance of the alleged representation of a two year term from 1 January 2006, he expended $20,000-00 to his detriment, is also without merit. The evidence shows that the plaintiff became the registered proprietor of the property on 4 October 2005. This is not disputed. By the defendant’s own admission, within a little over two months he was advised by the plaintiff that it would be giving him notice to vacate the property – paragraphs 7, 8 and 14 of 2nd affidavit. He was well aware of the plaintiff’s position by 20 December 2005 when he swore that affidavit and obtained an ex parte order from the Nadi Court, which he now concedes that Court had no jurisdiction to grant, restraining the plaintiff from evicting him. The plaintiff could not take further steps to evict him until the injunction was discharged. The evidence falls far short of giving rise to an equitable estoppel. There is no evidence whatsoever of the plaintiff having allowed the defendant to carry out the alleged renovations, knowing that he was acting on the basis of a false assumption as to the existence of a binding agreement.

[16] His claim to compensation for that work simply gives rise to a separate cause of action for a monetary payment, but not a basis for asserting a right to any form of tenancy: Ram Chand & Others –v- Hari Prasad (Civil Appeal No.21 of 2002). He has failed to produce some tangible evidence establishing a right to something more than a monthly tenancy or supporting an arguable case for such a right. He has quite clearly failed to raise any credible evidence supporting "a personal right not amounting to a property interest" as held in Sheila Maharaj –v- Jai Chand [1986] 1 AC 898 – which Finnigan J mentions in his interlocutory rulings in Sunil Chand –v- Prime Land Development Ltd HBC 76/05 which Ms.Khan relies on as authority for her submissions.

Conclusion

[17] The defendant has not discharged the onus placed upon him by Section 172 of the Act. I am not satisfied that he has shown any good cause why he should not give up possession of the property. This is a clear case. The application therefore succeeds. Accordingly I grant the order for vacant possession and order the defendant to deliver vacant possession to the plaintiff of Shop 5 on 1st floor in Clay Street, Nadi Town comprised in Native Lease No. 26821 being Vodawa Sub-division Lot 30 on ND 3099 situated in Nadi. I also order that the defendant pay costs to the plaintiff which I fix at $500-00.

Gwen Phillips
JUDGE

At Lautoka
14 July 2006