IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. 161 of 2012

IN THE MATTER of the LAND TRANSFER ACT

AND

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

BETWEEN:

SUVA CENTRAL LIMITED, a limited liability having its registered office at Level 12, Suva Central Building, Corner or Renwick Road & Pratt Street, Suva.
PLAINTIFF

AND:

ZAHA LIMITED, a limited liability company having its registered office at 120 Robertson Road Suva.
DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSEL: Mr. J. Apted for the Plaintiff 
Ms. L. Gounder for the Defendant

Date of Hearing: 2ndAugust, 2012
Date of Judgment: 10thAugust, 2012

JUDGMENT

A. INTRODUCTION 

1.	The Plaintiff filed originating summons against the Defendant for immediate vacant possession of a commercial property known as Shop T6 Level 1, Suva Central Building, located at the corner of Renwick Road & Pratt Street, Suva and being part of the land described in Certificate of Title No. 35354, being Lot 1 on Deposited Plan No. 8960 in the Republic of Fiji. The Plaintiff served a notice to quit and gave one month time period to vacate the premises but upon the request of a Director of the Defendant for three months time period to vacate the premises, the time period for vacation of premises was extended and three months time period was granted for vacation of the premises, but the Defendant did not vacate the premises and this action was filed against the Defendant seeking eviction. The premises is a commercial premises and the Defendant allege that it as the lessee of the premises has obtained a right to possession it for three years based on a document dated 19th October, 2010. The Plaintiff admit the said document but state that the said document was signed prior to the incorporation of the Defendant, only for the purposes of incorporation of the Defendant and also on the instigation of the promoters of the Defendant company who insisted that such a document was required for the incorporation of the Defendant. The evidence before me overwhelmingly support that contention as the correspondence between the promoters of the Defendant prior to the incorporation and the Plaintiff clearly indicated the requirements of the management of the Plaintiff, that requested certificate of incorporation and also guarantors and previous history of the renting of the properties by the prospective tenant and also the financial statements of the Defendant, but upon the indication that this was their first venture in Fiji the immediate requirement for the letting of the premises on lease was the certificate of incorporation. According to the correspondence, the stumbling block for the incorporation was the absence of permanent business premises and for that a documentary proof was sought and the document dated 19th October, 2010 was given, and the Defendant Company was incorporated immediately after the issuance of the said document and a formal lease agreement was also dispatched after the Defendant was incorporated, but this formal lease never got executed due to some difference as to the payment of legal fees . The evidence relating to the lease mainly confine to emails and both parties do not dispute them. The emails prior to 19th October, 2010 clearly indicate that the document which the Defendant relies was issued only for the purposes of incorporation and when the formal lease agreement was forwarded after the incorporation, the Defendant refused to pay the legal fees for the preparation of the said lease and if that was waived Defendant was prepared to execute it. The non execution of the lease agreement that was sent to the Defendant was due to request of the Plaintiff to pay legal fees and stamp duty for the execution of the said agreement, as the Defendant did not want to pay the charge of the legal fees and stamp fees for the said lease agreement and stated that since their business is a small business it cannot encounter such a high legal fee for execution of lease. The Plaintiff state that there is no valid lease between the parties as the earlier document dated 19th October, 2010, was executed for the purposes for incorporation of Defendant and that in any event there cannot be a valid lease since the Defendant was not incorporated at that time and the contract is unenforceable on the basis that contracts entered prior to the incorporation were unenforceable, unless they were adopted after the incorporation, there is no such adoption of the pre-incorporation contract entered on 19th October, 2010. The evidence in the affidavit in opposition do not dispute any facts in the case but on the same facts the Defendant is alleging that they are entitled for three year lease and cannot be evicted by quit notice, this is contrary to what a director of Defendant has requested from the Plaintiff initially when he requested for three months to vacate the premises and the Defendants are estopped from taking a conflicting propositions and emails produced by the Defendant substantiate the contention of the Plaintiff.

B. FACTS

2.	The basic facts of this matter are not in dispute. Following facts are admitted.

a.	Plaintiff is the registered proprietor of the Property.

b.	Defendant has been Defendant's tenant in respect of the Property and paid its rent monthly.

c.	The Defendant was incorporated on 21stOctober, 2010.

d.	Plaintiff issued Defendant with a notice to quit in a letter dated 7 March 2012. In Sekope Waqa's Affidavit, he deposes that the notice was served on 9 March 2012. The letter gave Defendant notice to quit on or before 30 April 2012 a period in excess of a month. 

e.	But, upon the request of the Defendant's Director on 13th March, 2012 the said date for vacation of the premises was extended till 6th March, 2012.

f.	A director of Defendant, Mr. Zinal Ahamed by an email to Plaintiff dated 13 March 2012 claimed that the Defendant was entitled to 3 months notice to quit, and accordingly three months time period was granted to vacate the premises as requested by the Defendant and the said three months time period ended on 6th June, 2012.

g.	The Defendant did not vacate the premises at the end of said three months period which they requested to vacate the premises and Defendant has remained in occupation after 6 June 2012 to date.

3.	The Defendant in the affidavit in opposition rely on the document dated 19th October, 2010 issued prior to the incorporation of the Defendant Company and state that they are lessees of the Plaintiff's premises for three years from 19th October, 2012 as the said offer for lease was being accepted and signed.

4.	The issue is whether the Defendant has a right to possession of the premises on the basis of the said letter dated 19th October, 2012. If the issue is answered in favour of Defendant the application for eviction should be dismissed.

C. ANALYSIS

5.	The Defendant admits that the Plaintiff as the Registered proprietor of the premises. Sections 169 to 172 of the Land Transfer Act provide – 

"Ejectors

169. 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 provides 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."

Particulars to be stated in summons

170. The summons shall contain a description of the land and shall require the person summoned to appear at the court on a day not earlier than sixteen days after the service of the summons.

Order for possession

171. 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 an may be enforced as a judgment in ejectment.

Dismissal of Summons

172. If the person summoned appears he may show cause why he refused 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 thinks 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:

Provided also that in the case of a lessor against a lessee, if the lessee, before the hearing, pay or tender all rent due and all costs incurred by the lessor, the judge shall dismiss the summons."

6.	The burden is shifted to the Defendant to prove a right to remain possession in terms of the Section 172 of the Land Transfer Act, when the proprietorship of the property is not an issue as in this case.

7.	The Defendant state that by the document dated 19th October, 2010 created a lease agreement between the Plaintiff and Defendant for three years. The said letter is annexed to the affidavit in support as SW3.

8.	The Plaintiff refers to this document as 'offer letter' but one has to be mindful that once the offer is accepted a contract is formed, but whether a proper acceptance was made by the Defendant is a legal issue. The said document dated 19th October, 2010 was addressed to the Director of the Defendant, which was yet to be incorporated at that time.

9.	The background facts that resulted the said document being issued were also not in dispute. They appear in Ashika Verma's Affidavit in opposition as annexed marked as AV 7,but summarized in Sekope Waqa's Affidavit, dated at paragraphs 7 to 36 and stated inter alia as follows

a.	At some time in late July or August 2010, Mr. Waqa was contacted by Mr. Ahamed. Mr. Waqa showed Mr. Ahamed the premises and Mr. Ahamed expressed interest in leasing it for the purposes of a fashion retail business. Mr. Ahamed told Mr. Waqa that he worked for the ASB Bank in Auckland and that his partner in the business venture would be Ms. Verma from Australia.

b.	Subsequently, Ms. Verma called Mr. Waqa to confirm their interest in the space.

c.	Thereafter, the parties corresponded by the emails which is annexed as AV 7 to Ms. Verma's Affidavit in opposition.

d.	In her email dated 10 August 2010, Ms. Verma formalized Mr. Ahamed and her joint interest in the Property.

e.	Mr. Waqa's reply of 11 August 2010 advised that Mr. Waqa would need to consult with Plaintiff's Management about renting them the Property.

f.	Subsequently, Ms. Verma inquired as to the dimensions of the Property on 16 August 2010 and Mr. Waqa gave these to her on the same date. 

g.	On 9 September 2010, Ms. Verma emailed Mr. Waqa asking him to confirm the availability of the Property and offering to pay a deposit.

h.	Before Mr. Waqa had even confirmed availability or conducted any negotiations, Ms. Verma advised that they had already sent the first shipment of shop fittings and stock from New Zealand.

i.	On 20 September 2010, Ms. Verma again emailed Mr. Waqa seeking confirmation that the Property was available and advised again that "we have shipped all our items".

j.	On 23 September 2010, her co-director, Mr. Ahamed emailed and also advised that "all our items will arrive in Fiji in the next 3 weeks and as of now, we even don't have a place to store them".

k.	The email acknowledged that Mr. Waqa needed approval from his supervisors before he could confirm Plaintiff's willingness to grant Defendant a lease. It also advised that the fittings had been sized, based on the Property size. However, at this stage, Mr. Waqa had still not yet confirmed that Plaintiff was willing to lease them the Property.

l.	Mr. Waqa replied to Mr. Ahamed on the same date advising him of Plaintiff's requirements for any lease. The requirements included "a company registration and a Business Licence". He also advised that 'there has to be a guarantor in the agreement or Deed of Lease".

m.	Mr. Ahamed replied by email of the same day advising Mr. Waqa that they were having difficulty registering their company as the Registrar first required confirmation of the shop address. The email stated – 

"As soon as we get confirmation of the premises, we will use its address to register a business in Fiji and get a business licence as well.

If you needed you can offer us the place provided we do all the registration and get a business licence and it is all fine by us."

n.	Mr. Waqa's evidence was that he was hesitant to do this and replied on the same date asking for personal accounts for verification of the prospective shareholders' financial position.

o.	By email the next day 24 September 2010, Mr. Ahamed sent Ms. Verma's bank statement to Mr. Waqa. He again advised that they had already bought and shipped all their stock.

p.	On 28 September 2010, Mr. Ahamed again emailed Mr. Waqa this time asking how long it would take to get approval for the Property, once the Company was registered. He asked whether Mr. Waqa could confirm that if the two of them came and registered the business, they could then get the Property.

q.	Mr. Waqa replied immediately that "That would be wonderful and there should be no problem at al"' i.e. that if they came and registered their company, they could then lease the Property.

r.	On 14 October 2010, Mr. Ahamed emailed Mr. Waqa advising him that Ms. Verma was coming to Fiji to attend to the matter and asking Mr. Waqa to advise what other information apart from business registration the Plaintiff would require for the lease.

s.	In Mr. Waqa's reply of the same date, he again stated Plaintiff needed a company registration.

t.	On about 19 October 2010, Mr. Waqa met with Ms. Verma. She once more advised in order to be able to register their company. This was the same request that had been made by email from Mr. Ahamed on 23 September, 2010.

10.	The said document was issued upon the request of the Defendant to facilitate the registration of the Defendant's business and the evidence on that is overwhelming and the Defendant is estopped from denying that fact as the promoters of the Defendant has encouraged the Plaintiff to act accordingly. The Defendant's promoters not only encouraged the Plaintiff to issue a document dated 19th October, 2010 but also soon after that proceeded and obtained a certificate of incorporation of the Defendant Company on 21st October, 2010 which corroborate the reason for issuing the document dated 19th October, 2010. It should also be noted that the shipment of items and the showroom fittings were arranged prior to the said document dated 19th October, 2010, and also any confirmation of renting the premises to Defendant.

11.	The Plaintiff state that document dated 19th October, 2010 cannot create a contractual obligation between the Plaintiff and Defendant as the Defendant has not been incorporated at that time, this may be so, but I will deal with that issue later as what the Defendant has to show in an application for eviction in terms of Section 169 of the Land Transfer Act, is only a right to possession though the affidavit in opposition rely on the said document dated 19th October, 2010 as a lease agreement for three years. This document is annexed to the affidavit in support marked as SW3. The issue is whether the document marked SW3 dated 19th October, 2010 is a contract of lease for 3 years. The interpretation of the said document is vital for any determination on the said document and then the legality of the said document is addressed.

Interpretation of the document dated 19th October 2010 marked SW3 to the affidavit in support.

12.	The interpretation of the document dated 19th October 2010 is vital to arrive at a decision as to whether there was a valid lease agreement between the parties.

13.	The leading authority on the interpretation of contracts is found in Investors Compensation Scheme Ltd v West Bromwhich Building Society [1998] 1 WLR, 896, where Lord Hoffmann (at pages 912 H to 913E) stated as follows:

"(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.

(2)The background was famously referred to by Lord Wilberforce as the "matrix of fact", but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next. It includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man. 

(3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear. But this is not the occasion on which to explore them.

(4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of its words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax. (see Mannai Investments Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749).

(5) The "rule" that words should be given their 'natural and ordinary meaning' reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does to require judges to attribute to the parties an intention which they plainly could not have had. Lord Diplock made this point more vigorously when he said in Antaios Compania Neviera SA v Salen Rederierna AB [1985] 1 AC 191. 201;

"…if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business commonsense, it must be made to yield to business commonsense." (emphasis is mine)

14.	In the application of the said principles as reinstated by Lord Hoffman, regarding the interpretation of a document, in the case of Investors Compensation Scheme Ltd v West Bromwhich Building Society [1998] 1 WLR, 896, the background to the document dated 19th October, 2010 is not in dispute as the evidence is submitted by the affidavit in opposition and the number of emails that circulated is annexed AV 7. From the said emails it is clear that the Defendant had insisted for a documentary proof of Plaintiff's desire to let the premises and according to them, such a document was needed for the purpose of incorporation of the Defendant Company. Shortly after the document dated 19th October, 2010 was given the Defendant Company was incorporated on 21st October, 2010. The prior conduct of the parties as well as the subsequent conduct without any doubt support the Plaintiff's contention that the document dated 19thOctober, 2010 is not a lease agreement between the Plaintiff and Defendant.

15.	There is evidence that at that time, shortly after the incorporation, of the Defendant on 27th October, 2010 the Defendant was informed of further requirements of its business registration and guarantors for the execution of the lease agreement. This email is annexed as SW 1 to the affidavit in reply, and formal lease was annexed to the email.

16.	Even before the 19th October, 2010 the Plaintiff's management required the certificate of incorporation and previous history of their renting of premises and also financial statement of the prospective tenant along with two guarantors and once it was indicated that this venture was their fist in Fiji with some prospects of further expansion in Nandi, certain requirements were waived. It is clear that the incorporation of the Defendant was a requirement of the Plaintiff's management and in order to fulfill the said requirement the documentary proof of the company's business was requested and that is the genesis of the document dated 19th October, 2010 and the emails prior to signing of the said document proves that fact and the Defendant cannot deny that, as this evidence is annexed to affidavit in opposition as AV 7.

17.	The document dated 19th October, 2010 stated 'we have considered you interest and are pleased to offer you a lease of the above premises under the following terms and conditions' and the document was signed by property manager of the Plaintiff and it stated further 'All other terms and conditions of our standard Agreement to Lease are applicable.' The offer letter contained a number of provisions including a term of 3 years. It did not include a termination provision – whether for breach or upon notice. It stated that other terms from Plaintiff's standard terms would apply and if this is to be considered a lease agreement the tenant consented to terms and conditions which were not specified in the said document. This indicate they thought of execution of lease agreement after the Defendant was incorporated. There is evidence to show that the reason for the failure for incorporation of the Defendant was the absence of place of business and for that the promoters of the Defendant needed documentary evidence of place of business and at the same time the Plaintiff's management also required certificate of incorporation among other things to grant a lease and the only way out of this 'stalemate' was to provide a letter in the nature of document dated 19th October, 2010 to facilitate incorporation and then to proceed with a formal lease agreement. This would make business commonsense, too. 

18.	Mr. Waqa's affidavit evidence is that the offer letter was not intended to create legal relations. It was intended only to confirm that Plaintiff was prepared to offer the company the space after it was incorporates. He deposed that he gave them this letter to assist Ms. Verma and Mr. Ahamed who were the promoters of the Defendant Company prior incorporation, to incorporate the Defendant company. This was the assistance they had been seeking since Mr. Ahamed's email of 23 September 2010 which stated as follows

'So we are stuck with the address. ….

..

As soon as we get a confirmation of the premises, we will use its address to register a business in Fiji and get a business License as well.

If needed you can offer us the place provided we do all the registration…' (emphasis added)

The Defendant is estopped from taking a different position after the encouragement of the Plaintiff to issue a document for the purpose of incorporation of the Defendant Company.

19.	Though the Plaintiff sent a formal lease to the Defendant on 27th October, 2010 after the incorporation neither side took interest on that lease and on 2nd November, 2011 where Ashika Verma in her email stated as follows

'As per our discussion, I would like to raise my concern about the fees charged on the new lease agreement that was handed to us (ZAHA Limited) last week. I do not understand the reason why we should be charged for the legal fees, lease preparation and stamp duty. Here are my reasons:

The lease agreement was prepared by BSP without any consultation, with us. We didn't receive any prior notice of this therefore it is unfair to ask us to pay for any changes. I believe we already have a contract with BSP (an offer of lease made by BSP and accepted by ZAHA) Asking to pay additional money for another lease agreement is uncalled for. We are a small business and cannot afford to pay for unprecedented charges. I would also like to stress that I will need to consult my lawyer to read and interpret the agreement, which will cost ZAHA approximately $1000. In such tough economic times, it is quite difficult to afford such unanticipated expenses and I am sure BSP will not be willing to pay my legal fees, therefore I do not see any reason why I should be paying BSP's legal fees.

I do humbly request that all the fees and stamp duty is waived.'

The tenor of the said email is clear and the final request is to waive the stamp duty and fees as opposed to refusal to execute the formal lease, and the reasons for the said request is given in the said email. The reasons given for request to waive are now being used by the Defendant to indicate that they rely on the document dated 19th October, 2010 as a lease agreement, but proper analysis of the said email evidence proves otherwise and contention of the Defendant cannot be accepted as the Defendants are estopped from taking such a contention as the final request of the Defendant was to waive the stamp duty and legal fees and there is no refusal to sign the lease if that is done and certain reasons are given for the said request.

20.	This indicate that both parties knew the requirement of the execution of the formal lease and the document dated 19th October, 2010 was for a limited purpose and that was to facilitate the incorporation of the Defendant, which was also a requirement of the Plaintiff to let the premises on lease. As shown by emails referred to in affidavit in opposition as AV 7, it was a fundamental condition that the company first had to be registered and have a business licence before Plaintiff would grant a lease. There was another requirement of two guarantors too.

21.	The condition that there had to be a formal lease was reflected by the reference in the offer letter to other terms and conditions being those in Plaintiff's standard leases and no reasonable tenant would agree to such terms unless there is going to be a formal lease as the terms and conditions are silent on major issues similar to the termination and obligations of the each party and has to be relied on the condition which stated that usual terms of the Plaintiff would apply and there is no evidence of usual terms being discussed prior to 19th October, 2010. This makes no commercial sense, unless the parties agree to execute the formal lease with two guarantors, after the incorporation and this is substantiated by emailing a draft of formal lease on 27th October, 2010. 

22.	The Defendant company was incorporated two days later on 21 October 2010 and Mr. Waqa states the Plaintiff received a copy of Zaha Limited's certificate of incorporation on or about 21 or 22 October 2010, and Plaintiff then took steps to have the formal lease prepared and on 27 October 2010, he sent Ms. Verma a copy of the first draft of a lease by email. He in the said email reminded her that Plaintiff still needed Zaha Limited's business licence and guarantors to enter into a lease. The new draft lease after amendments by BSP Legal was then sent to Zaha Limited on 24 October, 2011. This was not signed because Defendant refused to pay the legal fees and stamp duty, interestingly it never refused to execute if the fees are waived.

23.	The only conclusion that the court can arrive at, in the interpretation of the document dated 19th October, 2010 is that it is not a lease agreement for three years, but a document issued for the purposes of incorporation of the Defendant which was a concern for both parties at that time.

24.	In Shyam Lal v Eric Martin Schultz (Court of Appeal, 1972) 152, the Fiji Court of Appeal held that the section 169 procedure is applicable where the basic facts are not in dispute.

At p. 154, Marsck JA who gave the judgment of the Court said – 

"In any event I am satisfied that the case falls squarely within the ambit of Section 169 of the Land Transfer Act, 1971, which provides that the registered proprietor of land may summon any person in possession of the land to appear before a judge in chambers to show cause why the person summoned should not give up possession to the supplicant. As I have said, the basic facts were not in dispute; and nothing has been put before this Court to show that any fact relevant to the matter in dispute was not brought to the notice of the Judge before he made the order appealed against. Consequently, in my view, the proceedings were correctly brought under Section 169 and no reason has been shown for upsetting the proceedings on that ground."

Gould VP at pp. 154 – 155 added – 

"I would only add, on the argument that the procedure authorized by section 169 of the Land Transfer Act, 1971, was not appropriate, that I am in sympathy with the proposition that complicated questions of fact (particularly where there are allegations of fraud) cannot adequately be investigated and dealt with on a summary proceeding in Chambers. The present case, however, involved virtually no contested relevant fact and the learned judge in any opinion rightly entertained and dealt with it." (emphasis is added)

The relevant facts are the intention of the parties and the interpretation of the document dated 19th October, 2010. These can be ascertain as the emails submitted by the Defendant are sufficient to arrive at a decision to determine whether the said document created a right to possession of the premises for three years without any provision for eviction. 

25.	In Ram Narayan v Moti Ram (Civil Appeal No. 16 of 1983), Gould VP giving the judgment of the Fiji Court of Appeal, applied the following earlier holding of the Court at p.3 – 

"In Vallabh Das Premji v Vinod Lal and Others FCA Civil Appeal No. 70 of 1974 (unreported) the Court said:

'In the past, or earlier but similar legislation, the Supreme Court has held that if the proceedings involved consideration of complicated facts or serious issues of law, it will not decide them on summary proceedings of this nature, but will dismiss the summons without prejudice to the plaintiff's right to institute proceedings by Writ of Summons. Instances quoted by counsel are Caldwell v Mongston (1907) 3 FLR 58 and Ferrier Watson v Venkat Swami (Civil Action 29 of 1967 – unreported). The power of the court to adopt this approach has not been challenged so it is not material to consider whether it arises under section 172 of the Act or from inherent power to reject as unsuitable procedure where another, comprehensive and better suited to the determination of controversial matters, is available."

He continued at pp. 3 – 4 – 

"At the same time, the summary procedure has been provided in the Land Transfer Act, and, where the issues involved are straight forward, and particularly where there are no complicated issued of fact, a litigant is entitled to have his application decided in that way."

In the case of VineshGir and Ramesh Gir v Roshni Devi [1986] FJCA 15; Civil Appeal No 60 of 1986 (27 October 1989) [Tab 4], the Fiji Court of Appeal said that –

"In an application for possession brought under section 169 of the Land Transfer Act the onus is on the defendant to sow cause why he should not give up possession".

26.	The Fiji Court of Appeal in Gurdial Singh v Shiu Raj (FCA Civil Appeal No. 44 of 1982) held that an application for possession under section 169 could be resisted by raising an estoppel. In that case, the registered proprietor was not permitted to go back on a promise made to a former maid that she could occupy the land for the rest of her life, and his consenting to her constructing a house was held to have raised an estoppels in her favour. In that case, the Defendant attempted to reply on the Fiji Court of Appeal in Gurdial Singh v Shiu Raj (FCA Civil Appeal No. 44 of 1982) and claimed an estoppels. Sheehan J, however, did not apply this in the Morris Hedstrom Limited –v- Liaquat Ali CA No: 153/87 case stated at pp. 4 – 5 – 

"Again as regards the alleged 'representation', no details have been offered of these either as to when they were made, or by whom they made; nor has there been any information as to whether those representations were made gratuitously or pursuant to some consideration given. Again it must be assumed that there is no written note or memorandum of these.

On the evidence contained in the affidavits before me, the defendant has done nothing more than make an allegation of right without any evidence whatever to support that claim. The statement that a house has been built on the land, is, without other evidence, no more than that, a mere statement. In Gurdial Singh the respondent there made out her case by affidavit showing clearly on what she based her claim to possession. The defendant here has offered no such information that leads me to consider that he has an arguable claim to possession."

27.	The Defendant rely on the said document dated 19th October, 2010 and the evidence presented by the Defendant, namely the email correspondence between the parties concerned prior to the incorporation of the Defendant as well as the communications after the incorporation directs to only one conclusion and that is neither party intended the document dated 19th October, 2010 to be the lease for three years. The prior conduct as the subsequent conduct that evidenced from the emails overwhelmingly supports that the purpose of the said document was facilitate the promoters of the Defendant to obtain the certificate of incorporation. When this fact can be ascertained from the evidence presented by the Defendant, the matter can be dealt properly under the Section 169 of Land Transfer Act as the facts are not disputed. There is no enforceable lease agreement between the Plaintiff and Defendant.

28.	The section 89 of the Property Law Act provides law relating to termination of tenancy and the Defendant is a tenant of the Plaintiff without a lease agreement for a period of three years as the interpretation of the document as well as the subsequent as the prior conduct of the parties clearly indicate the document dated 19th October, 2010 is not a lease between the Plaintiff and the Defendant. The requirement in the absence of lease agreement between the parties are laid down in Section 89 of the Property Act as follows;

"Termination of tenancies

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 month's 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."

29.	In the absence of written agreement between the parties for lease the Plaintiff is required to give only one month notice, but upon the request of the Director of the Defendant they were granted three months to vacate and are estopped from changing the position in this action. The Plaintiff also states that the document signed on 19th October, 2010 is not binding the parties as the Defendant was not incorporated at that time.

Is the document dated 19th October, 2010 binding on Plaintiff and Defendant?

30.	It is well established in contract law that an agreement even if supported by apparent consideration may not amount to an enforceable contract if it was made without any intention to create legal relations. The continued application of this principle was confirmed in Baird Textiles Holdings Ltd v Marks & Spencer Plc [2001] EWCA 274 at [30], [59]. 

31.	The onus of proving the absence of legal intention is on the party asserting it Edwards v Skyways Limited [1964] 1 All ER 494, and the test is an objective one (Baird Textiles Holdings) and the Plaintiff has satisfied this burden though the emails that communicated between the parties which are admitted by the parties and bulk of that are presented to the court by the Defendant in the affidavit in opposition.

32.	In Kelner v Baxter & Ors LR 2 CP 174 that a contract which is made on behalf a company before it is incorporated is void as against the company but may be enforced against an agent if he or she purported to act as agent for a non-existent company. In that case, the promoters had specifically signed the agreement on behalf of a "proposed company".

33.	Newborne v Sensolid (Great Britain) LD [1954] 1 QB 45 the contractual document purported to name the company and its directors as directors, even though the company was not registered similar to the document dated 19th October, 2010. The English Court of Appeal distinguished Kelner v Baxter and found that the person who signed the contract did not purport to do so an agent or principal. Lord Goddard C.J held at page 51 as follows

'In my opinion, unfortunate though it may be, as the company was not in existence when the contract was signed there never was a contract, and Mr. Newborne cannot come forward and say: "well, it was my contract." The fact is, he made a contract for a company which did not exist. It seems to me, therefore, that the defendants can avail themselves of the defence which they pleaded and the appeal must be dismissed.'

34.	In the concurring judgment of Morris L.J in Newborne v Sensolid (Great Britain) LD [1954] 1 QB 45 at page 52 stated

'I do not find that this present contract was one made with Mr. Newborne as agent for the company. This was a contract which purported to be a contract with the company, and I find myself in full agreement with the way in which this matter was expressed by the trial judge when he said: "This company was not in existence and ….the signature on that document, and indeed, the document itself……is a complete nullity." I agree, therefore that the appeal fails.'

Without prejudice to what I have stated earlier in this judgment, the legality of the acceptance of the offer letter dated 19th October, 2010 is also an issue and the acceptance by the Director of the ZAHA is a complete nullity as the ZAHA was incorporated after the said acceptance by the Director as stated in the above case.

35.	The contract purported to be made by the company on whose behalf it was signed by a future director and in as much as the company was non – exited at the material time, the contract was a total nullity (Newborne was subsequently followed by the Australia High Court in Black & Anor v Smallwood & Anor [1965 – 1966] 117 CLR 52 . In that case, a contract for land was entered into in the name of an as-yet unregistered company and was signed by two persons as its directors. The Court held that the contract could not be enforced against either the Company nor the directors because the signatories' intention was to contract for the company and not as its agents.

36.	The intension of the Plaintiff from the beginning of this transaction of the letting the premises on rent, was to contract with the Defendant and not with its promoters and or its directors. The both parties do not dispute that fact. The requirement of the Plaintiff's management through its Property Manager, was known to the promoters of the Defendant and this is clear from the insistence of incorporation of the prospective tenant (Defendant) by the Plaintiff. The requirement of incorporation was insisted by the management of the Plaintiff and this position was never disputed as the email of 2nd November, 2011 which I have quoted earlier in this judgment also stated that offer of the Plaintiff was accepted by ZAHA as opposed to any individual, but without realizing that the Defendant was not incorporated at that time and no valid contract was created unless the Defendant sanctioned it soon after the incorporation.

37.	The Defendant also claims proprietary estoppel, but the communication between the parties long before 19th October, 2010 indicate the promoters of the Defendant had even shipped the consignment of items prior to the signing of the said document dated 19th October, 2010 and accordingly to emails the already prepared items for the business fits to the Plaintiff's premises and there was no confirmation of the premises at that time. So, any expenditure was done even prior to the document dated 19th October, 2010 which is alleged as a 'lease for three years' by the Defendants. It is evident the management of the Defendant has repeatedly requested certificate of incorporation as well as business license and also two guarantors after being informed that other requirements like the previous history of renting property and financial statements were not available as it was the first venture.

D. CONCLUSION 

38.	The interpretation of the document dated 19th October, 2010 is that it was never to be considered as a lease agreement by the signatories and it was never intended by them even at the time of quit notice was served to the Defendant as a director of the Defendant sought 3 months to vacate the premises. The prior and subsequent actions evidenced by the contents of emails, amply demonstrate that neither party rely on the said document as the lease for three years as the formal lease was forwarded soon after the incorporation of the Defendant which also required business certificate and two guarantors. When the formal lease was dispatched the concern for the Defendant was the payment of fees including the stamp fees, but they never refused to execute it, if such waivers were allowed. This indicate the mindset that prevailed among the parties as regards to the document dated 19th October, 2010, even after nearly one year had lapsed from the initial negotiations. At that time Plaintiff as well as the promoters of the Defendant needed incorporation of the Defendant Company, to proceed with the business venture and the only way out from the stalemate situation was to provide a document for the purposes of incorporation and that was done through the document dated 19th October, 2010. Neither party intended that it to be a substitute for lease agreement which was the requirement and the standard in the Plaintiff's tenants as evidenced from the emails. The requirements of the Plaintiff are stringent and they were not ready to accept any tenant. The Plaintiff through its property manager indicated the requirements for prospective tenants and one of such requirement is the certificate of incorporation. The only interpretation that can be given to document dated 19th October, 2010 is that it was given for a limited purpose of incorporation of the Defendant. Any other interpretation would not only violate the intension of the parties which is clear even to the time of institution of this action where a director of the Defendant had requested three months to vacate the premises, but also it will violate business commonsense. . In any event a pre-incorporation contracts can only be made enforceable if they are adopted by the Company after the incorporation and nothing is done in that regard by the Defendant for over one year to adopt a company resolution to validate pre-incorporated contract. There is no legally enforceable lease between the plaintiff and the Defendant and the tenancy is considered monthly tenancy. This is substantiated by the actions of the Defendant's director, who requested three months to vacate the premises when one month notice to vacate the premises was given. There is no proprietary estoppel created by the said document as the ingredients to create proprietary estoppel are absent and any expenditure as to the shop fittings were admittedly done prior to the confirmation of the premises and this had been used as a factor to encourage the Plaintiff to offer the premises. This is evidenced from the emails. The Plaintiff is immediately granted vacant possession of the premises described in the summons, and the cost of this application is assessed summarily at $1250.

E. FINAL ORDERS

a.	The Plaintiff is granted the vacant possession of the premises described in the originating summons.

b.	The cost of this application is assessed summarily at $1,250.

Dated at Suva this 10th day of August, 2012.

Master Deepthi Amaratunga
High Court, Suva