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Prasad v Miriamma [2011] FJHC 780; HBJ005.2011 (29 November 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBJ 005 of 2011

BETWEEN:

SEO PRASAD (father’s name Matabadal) of Olo Olo, Sigatoka, Landlord
APPELLANT

AND:

MIRIAMMA a.k.a. MIRIAMMA PILLAI (father’s name unknown to the plaintiff of Sigatoka Town, Sigatoka, Businessperson
RESPONDENT

FINAL JUDGMENT

Judgment of: Ms Dias Wickramasinghe J.
Counsel: Mr F. Koya for the Applicant
Mr D.S.Naidu for the Respondent
Solicitors: Koyas for the Applicant
Pillai Naidu & Associates for the Respondent
Date of judgment: 29 November 2011

INTRODUCTION

[1] This is an appeal from the Master’s decision dated 2 March 2011 where an application was made by the plaintiff-appellant-Seo Prasad (the landlord) by his summons dated 19 August 2010 seeking an order for vacant possession of the land occupied by the defendant-respondent- Mariamma, (the tenant) under Section 169 of the Land Transfer Act, Cap. 131 (the Act).

[2] The Master in his decision found that there were triable issues and ordered inter alia to continue the suit as begun by the writ.

[3] I have considered the following documents in considering this appeal.

(1) The summons for ejectment dated 19 August 2010 and the supporting affidavit of landlord-Seo Prasad dated 6 August 2010;

(2)The affidavit in reply filed by the respondent-defendant Mariamma, dated 10 November 2010;

(3) Reply to the said affidavit of response by the landlord dated 7 December 2010; and

(4) All attachments in the respective affidavits.

BACKGROUND

[4] The landlord-Seo Prasad is the registered proprietor of the land comprised in CT 10220 being Lot 52 of DP 2456 situated at Sigatoka Town in the District of Nadroga (the property). The property was duly registered in the name of the landlord on 18 December 2009. The tenant admits that the landlord is the registered proprietor of the property.

[5] The respondent was a sitting tenant of the said property when it was purchased by the landlord. The landlord alleged that he permitted the tenant to continue occupation of the property on payment of a monthly tenancy rental of $350.00, which was the same rental that was paid by the tenant to the previous owner.

[6] The landlord, by quit notice dated 11 March 2010, gave notice to the tenant to vacate the property to enable him to carry out major renovations. (SP2- attached to the supporting affidavit of Seo Prasad).

[7] The respondent-tenant refuted that she was a monthly tenant and further deposed that she had a fixed term tenancy agreement valid for five years. She further deposed that the landlord purchased the property in early 2009, well before it was duly registered on 18 December 2009. The tenant further deposed that the landlord appointed Mr Narendra Kumar to collect all rentals and act for him in all matters pertaining to the leasing of the shops and dealing with the tenants. A copy of the letter of authority given by the applicant-landlord to Narendra Kumar and the five year fixed term tenancy agreement is attached to her affidavit marked MP1 and MP2 respectively.

[8] The landlord, in its affidavit in response dated 7 December 2010, disputed the fixed term agreement and further deposed that the letter of authority given to Narendra Kumar, which was dated 5 October 2001, way before the purchasing of the property, had no bearing on the property in issue. He therefore averred that the purported lease agreement executed by Mr Narendra Kumar was illegal.

[9] The affidavit evidence established that the tenancy of the respondent is legal; but there is an apparent dispute relating to the tenancy i.e. whether the tenancy is based on monthly tenancy or a fix term tenancy.

LEGAL MATRIX

[10] The applicant-landlord raises following grounds of appeal:

1. That the Learned Master erred on law and in fact in holding that the Respondent-defendant had established some prima facie right to possession;
   
2. That the Learned Master erred in law and in fact in holding that the Respondent-defendant had satisfied the requirement of Section 172 of the Land Transfer Act (Cap 131) in that the Respondent/defendant showed sufficient cause to remain on the property;
   
3. That the Learned Master erred in law and in fact in holding that there are lots of triable issues raised in the affidavits;
   
4. That the Learned Master erred in law and in fact in holding that the evidence of Narendra Kumar is required to determine the matter summarily;
   
5. That the Learned Master erred in law and in fact in finding that there was a fixed term of lease.
   

[11] Section 169 of the Land Transfer Act (Cap. 131) provides:

The following persons may summon any person in possession of land to appear before a judge in chambers to show cause why the person summoned should not give up possession to the applicant:

(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, when 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[1].

[12] The summons states that the application is made under section 169 of the Land Transfer Act, but does not specify the subsection upon which he is relying in the summons. The affidavit, however, deposes that the plaintiff is the registered proprietor of the land with a monthly tenancy; and therefore, it appears that the summons is made under s.169 (a) of the Act.

[13] Section 172 of the Land Transfer Act states that: " if a 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,... and 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:...".

[14] Upon receiving the summons the tenant must show sufficient cause under s. 172 of the Act to justify her occupation of the land. The respondent tenant alleges that she has a valid fix term contract without an exit clause executed under the authority of the landlord by Narendra Kumar. The landlord states that the authority given to Narendra Kumar was for a limited purpose and that he is unaware of the existence of the fix term contract. The landlord further alleges that the purported agreement is illegal and the tenant had fraudulently created it to establish the right of occupancy by her.

[15] Clearly, there are two conflicting claims. However for the purpose of s. 172 of the Act, it is my opinion that the tenant had showed sufficient cause with supporting evidence establishing the right to legal occupation of the property, based on a five year fix term of contract.

[16] It is also my opinion that the conflicting claims cannot be a subject matter for consideration under s. 169 of the Act. These are issues that require verification on evidence under cross-examination at a hearing and not through mere affidavits in a summarily disposed summons.

[17] I agree with the Master that there are triable issues for consideration relating to the tenancy.

[18] In the circumstances I see no reason to interfere with the decision of the Master dated 2 March 2011. Accordingly, I dismiss the appeal.

ORDERS

1. Appeal dismissed.
   
2. The applicant to pay the respondent $350.00 as Costs of this appeal within 21 days hereof.
   

D. Dias Wickramasinghe
Judge

^[1] Section 2 of the Act defines ‘lessor’ and ‘land’ as follows.

• "lessor" means the proprietor of the land leased and includes a sub-lessor.
• "land" includes land, messuages, tenements and hereditaments, corporeal and incorporeal, of every kind and description, together with all buildings and other fixtures, paths, passages, ways, watercourses, liberties, privileges, easements, plantations, gardens, mines, minerals and quarries, and all trees and timber thereon or thereunder lying or being unless any such are specially excepted;