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Devi v Kanta [2011] FJHC 193; HBC316.2010 (29 March 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 316 of 2010

IN THE MATTER of an application under Section 169 of the Land Transfer Act, Cap 131

BETWEEN:

VINEETA DEVI (f/n Vir Chand aka Bir Chand) of Naitata, Navua, Fiji, Businesswoman.
PLAINTIFF

AND:

CHANDRA KANTA (f/n not known) of Naitata, Navua, Occupation Unknown.
DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSELS: Nands Law for the Plaintiff
MC Lawyers for the Defendant

Date of Hearing: 9th February, 2011
Date of Ruling: 29th March, 2011

RULING

1. INTRODUCTION
   

1. This is an application made in terms of Section 169 of the Land Transfer Act. Plaintiff has filed this action as the last registered proprietor of the land in question. The Defendant claims proprietary estopple and state that a residential house was built on the basis that she will be given an opportunity to buy the land by plaintiff's predecessor. Also state that the notice to quit is void as the time period indicated is contrary to the stipulated time set out in the Property Act.
   

2. Preliminary Legal Issue

At the outset the counsel for the Defendant stated that the notice to quit was not in conformity with the law and adequate time has not been given granted in the notice to quit. Admittedly, the Defendant was a tenant of the Plaintiff's predecessor in title and there was no written tenancy agreement, but ground rent was paid yearly by the Defendant and her predecessors on title. The relevant law relating to the time period of the quit notice is found in Section 89 of the Property Law (chapter 130).

It states as follows:

89.-(1) No tenancy from year to year is implied by payment of rent.

(2) In the absence of express agreement between the parties, a tenancy of no fixed duration in respect of which the rent is payable weekly, monthly, yearly or for any other recurring period may be terminated by either party giving to the other written notice as follows:-

(a) where the rent is payable yearly or for any recurring period exceeding one year, at least six months' notice expiring at the end of any year of the tenancy; or

(b) where the rent is payable for any recurring period of less than one year, notice for at least a period equal to one rent period under the tenancy and expiring at any time, whether at the end of a rent period or not. (emphasis is added)

3. From the payment receipts filed by the Defendant it is evident that the payments were not done consistently, but payments were made for one year and examining these receipts it is clear that there was no fixed date on which the payments were made as sometimes even the payments were made for previous two years and there is no consistency as to deduce a date on expiry of the term. The last payment according to the affidavit of the Defendant was done on 21st January, 2009 for the years ending 2007 and 2008. But in contrast to that the receipt issued on 23.12.2005 indicate that it was for 2005 and the receipts issued on 25.12.2004, and 30.01.2003 do not indicate the term for which the payments was made. When one takes into consideration all the receipts that were filed by the Defendant it can deduce that the payments were made for yearly rent of the premises and there were no fixed time period for the expiry of the tenancy.

4. It is also clear that the terms 'Rent' and 'lease' were used loosely and in years 1982,1984,1985 the term 'lease ' was used but from 1989 only the term 'rent' was used to describe the payments made by the Defendant's predecessor to the Plaintiff's predecessor.

5. The payments were clearly made as rent as there was no lease agreement between the parties and in any event in the absence of any agreement to sell the land the acceptance of receipts for payments for rent from 1989 to 2009 for 20 years, it is evident the payments were made as rents, but no date of expiry of the year of tenancy is deducible from the evidence. No issue was raised by the Defendant on that either in the affidavit in opposition or in the written submission. The issue raised by the Defendant is regarding the time indicated in the quit notice.

6. Plaintiff through his lawyers issued a notice to vacate the premises to the Defendant on 17th December, 2009. The time period indicated in that notice is one calendar month. It is not sufficient as at least six months' notice is required in pursuant to Section 89 of the Property Law, if the tenancy term is one year.

7. The Plaintiff has not accepted any rent from the Defendant or her predecessors. Defendant claims that once the Plaintiff became the proprietor of the property, the rent was not accepted, though it was presented.

8. Plaintiff gave a quit notice for one calendar month in December.2009 but, the Plaintiff did not file this action soon after the expiry of the time period indicated in the quit notice dated 17th December, 2009.

9. Again, on 11th May, 2010, the Solicitors who are acting on behalf of the Plaintiff issued another "notice to vacate" and in that letter time was given till 12th June, 2010 to vacate the premises.

10. The contention of the Plaintiff is that the Defendant was asked to vacate the premises in December, 2009 and they had time till 12th June, 2010 to vacate the premises and this case was filed only on 10th November, 2010 and had ample time to leave the premises though the notices did not specify the time period of six months.

11. It is clear that during the tenancy of the Plaintiff's father the Defendant has paid rent for a period of one year. The Plaintiff's father bequeathed the property in his will to the Plaintiff and upon the death of the father she became the proprietor of the property after obtaining a probate to execute the will. In the circumstances the tenancy with the Plaintiff's predecessor is yearly and six months notice is required as this property was inherited from the father of the Plaintiff.

12. It is to be noted that neither the quit notice dated 17th December, 2009 nor the one dated on 11th May, 2010 had granted six months. The case authority submitted by the Plaintiff, namely Henning v Tamaibeka 1992 FJHC 42 decided on 25th September, 1992 (HBC 294 of 1992) does not deal with the issue of a failure give adequate notice.

13. In the circumstances I decide that notice to vacate has not complied with the mandatory provisions of the Property law and notice to vacate is void and the matter is struck out on the basis of invalid notice.

14. Considering the circumstances of the case I will not award any cost.

2. CONCLUSIOIN
   

15. Preliminary issue of invalid notice to quit is sustained. Matter is struck out without cost.

Dated at Suva this 29th day of March, 2011

Mr. Deepthi Amaratunga
Acting Master of the High Court

Suva