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Prasad v Devi [2012] FJHC 1218; HBC77.2012 (17 July 2012)

IN THE HIGH COURT OF FIJI
(CENTRAL DIVISION) AT SUVA
EVICTION PROCEEDINGS

Civil Action No. 77 of 2012

IN THE MATTER of Section 169 of the LAND
TANSFER ACT 1971 CAP. 131.

BETWEEN:

VINOD PRASAD of 20 Lemaki Street, Vatuwaqa, Suva in
the Republic of Fiji. Plant Mechanic.
PLAINTIFF

AND:

PREMILA DEVI of 20 Lemaki Street, Vatuwaqa, Suva in the
Republic of Fiji, Unemployed and/or any other occupants.
DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSEL: Mr. Lateef F for the Plaintiff
Defendant In person

Date of Hearing: 04th June, 2012
Date of Decision: 17th July, 2012

DECISION

A. INTRODUCTION

1. The Plaintiff filed this action for the eviction of the Defendant in terms of the Section 169 of the Land Transport Act. The Defendant admittedly came into the possession as a tenant of the Plaintiff, but now complains the premises given on rent is not suitable for living. The dispute between the parties as to the return of the money given as a bond, has resulted a claim in the small claims tribunal and also alleged harassment and damage to the property of the Defendant. The said allegations are outside the scope of this action. Defendant has to show a right to remain in possession in the premises.
   

B. FACTS

2. The Plaintiff and the Defendant entered in to an agreement for tenancy on 16th April, 2011 for one year and the monthly rental was $400 per month.
   
3. The bond was $400 which was to be held by the landlord.
   
4. The Defendant did not pay any rent and a termination of the tenancy was informed by the letter dated 25th October, 2011 in terms of the said tenancy agreement.
   
5. In the affidavit in opposition the Defendant is alleging unlawful actions of the Defendant that resulted some damage to the property of the Defendant.
   
6. The Defendant also allege that the premises in issue is unauthorized.
   

C. ANALYSIS

7. Section 169 of the Land Transfer Act state as follows
   

"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". (emphasis is mine)

It is further stated in Section 171 of the Land Transfer Act that

"On the day appointed for the hearing of the summons, if the person summoned does not appear, then upon proof to the satisfaction of the judge of the due service of such summons and upon proof of the title by the proprietor or lessor and, if any consent is necessary, by the production and proof of such consent, the judge may order immediate possession to be given to the plaintiff, which order shall have the effect of and may be enforced as a judgment in ejectment."(emphasis is added)

8. The Defendant admits that she obtained the possession in pursuant to the tenancy agreement annexed to the affidavit in support. The Plaintiff has satisfied the requirement in terms of Section 169 (a).
   
9. The Plaintiff has issued a notice to vacate and the said letter gave more than one moth time period from 25th October, 2011. The Defendant has failed to vacate the premises.
   
10. The Defendant has defaulted rent and in any event the time period for the rent expired on 16th April, 2012 as stated in the agreement.
    
11. The Defendant is alleging certain illegal acts of the Defendant. The said illegal acts are not the scope of this action and I do not wish to deal with them as they are irrelevant to this action and what the Defendant has to show is a right to possession of the premises which she has failed to do. I will not order cost considering the nature of the allegations and circumstances of the case.
    
12. The Plaintiff is granted immediate possession of the premises and considering the circumstances of the case I will not order cost.
    

D. FINAL ORDERS

1. The Plaintiff is granted immediate possession.
   
2. No cost.
   

Dated at Suva this 17th day of July, 2012.

Master Deepthi Amaratunga
High Court, Suva