High Court of Fiji

10. The scope of the hearing of the application under section 169 constitutes two main limbs. The first is the onus of the Plaintiff to satisfy the court that he is the last registered proprietor or the lessor as described under the section 169 (b) and (c) of the Act. Once the Plaintiff satisfies it, the burden will shift on the Defendant to satisfy the court that he has a right to the possession of the land. The scope of the Defendant's burden of prove of a right to the possession of the land has discussed in Morris Hedstrom Limited-v- Liaquat Ali CA No: 153/87, where it was held that
    

"Under Section 172 the person summonay shoy show cause why he refused to give possession of the;land;and iand if he proe proves to the satisfaction of the Judgight so possession sion or can establish an arguable defence the application will be dsed wosts in his favour. The Defendants must show on a on affidaffidavit evidence some right to possession which would preclude the granting of;an order for possession sion under Section 169 procedure. That t to say thay that final or incontrovertible proof#160;a right to remain in possession must be adduced. What is required is that some tangiblngible evidence establishing a right or suing auable case for suor such a ch a right, must be adduced."

Accordingly, the defendant is only required to present some tangible evidence to establish a right tothe possession or the existence of an arguable case for such right to defeat the Plaintiff's claim.

4. ANALYSIS,
   

11. I first draw my attention to deal with the two preliminary objections raised by the learned counsel for the Defendant. The first is that the format of the Originating Summons is not in conformity with Order 7 r 2 (1). I do not wish to discuss extensively on this issue and refer Order 2 r 1 and section 170 of the Land Transfer Act. The form used by the Plaintiff is an irregularity which falls within the scope of Order 2 r 1. This irregularity, itself does not make this Summons void. Apart from that, I find that the Defendant had given sufficient time to show cause pursuant to section 170 of the Land Transfer Act. Wherefore, I accordingly disregard this first preliminary objection of the Defendant.
    
12. The second preliminary objection of the Defendant is that the notice to quit is not in conformity with section 89 of the Property Law Act. The learned counsel for the Defendant relied on Wati v Channan( 2011) FJHC 464;HBC71.2011 ( 23 August 2011) in order to support his objection. However, I find that Hon. Master Amaratunga ( as his lordship then was) has specifically demarcated the scope of section 89, where his lordship observed that;" it is clear that the application of the provisions contained in section 89 of the Property law, will come in to effect only, where there is no express agreement between the parties". However, in this instance case, the Plaintiffs and the Defendant have entered into a tenancy agreement, wherefore; the Plaintiffs are not required to follow the section 89 of the Property Law Act and only required to give notice of termination in accordance with the tenancy agreement. In view of these findings, I disregard the second preliminary objection of the Defendant.
    
13. Having considered the affidavit and the submissions of the Defendant, I could summarize that the Defendant's main argument is founded on the principles ofestoppel by matter of record and/or equitable estoppel. The Defendant argues that she entered into the tenancy agreement upon the promise and the representation made by the Plaintiffs, that the house is free of any obstruction and available for two years of lease term. She further stated that she has spent about $1,500 to clean up the house before she entered into the occupation. The learned counsel of the Defendant heavily relied on clauses 6 and 7 of the tenancy agreement.
    
14. I do agree with the Defendant's contention that the Plaintiffs have agreed to give the possession of the premises without any obstruction and interruption for a period of two years pursuant to clauses 6 and 7 of the agreement. However, the tenancy agreement also allows the Plaintiffs to terminate the agreement before the completion of the tenancy period on three separate grounds. The first is clause 33 (c) of the agreement where it allows the Plaintiffs to terminate the agreement if the tenant is more than 45 days in arrears of rent. Secondly, clause 34 deals with an instance where the landlord could terminate the agreement on the ground of a breach of this agreement. The third instance is clause 38, which allows the landlord,if he wishes, to terminate this agreement before the expiration of the tenancy period. The only requirement is to give a 60 days written notice to the tenant to find a suitable house to relocatepursuant to clause 38 (a). The clause 38 (b) further provides that the tenant is entitled to refund the bond if this agreement is terminated within six months of the tenancy dues to a default from the landlord.
    
15. It appears that pursuant to clause 38 (a) and (b), the Plaintiffs if they wish, could terminate this agreement before the expiry of the agreement. This right of the landlord must be considered disjointedly from clauses 33 (c) and 34, where the landlord is only allowed to terminate either on the ground of default of rent payment or a breach of this agreement. The only requirement under clause 38 is to give 60 days of written notice to the tenant. The landlord is not refrained from terminating the agreement within the first six months of the tenancy period. The only obligation of the landlord under such circumstances is to refund the tenant the deposit if he terminated the agreement due to his own default. It seems to be imperative to note that the landlord is only liable to refund the deposit, if the termination is due to his default, but not due to a breach of the agreement. Accordingly, it appears to me, that the Plaintiffs, if they wish, are not restricted to terminate the agreement,though they have agreed to provide vacant possession of the premises under clauses 6 and 7 of the agreement.
    
16. The Defendant has entered into this agreement together with the renting guidelines on the 3rd of April 2013. It is apparent that the Defendant was fully aware of the right of the landlord to terminate this agreement before the expiration pursuant to clause 38. Under such circumstances, the Defendant could not only rely on clauses 6 and 7 of the agreement. At the commencement of the tenancy agreement, the parties were not only agreed of the Plaintiffs' obligation to provide the premises for a period of two years, but also agreed to the Plaintiffs' right to terminate this tenancy agreement pursuant to clause 38 of the agreement. Thus, the Defendant could not rely on the contention that the Plaintiffs are estoppelunder the agreement or under equity to terminate this tenancy agreement before the expiration of two years period.
    
17. In conclusion, I find that the Defendant has failed to successfully satisfy the court, that he has a right to the possession of the land, or an arguable case for such right. I accordingly make following orders that;
    
    1. The Plaintiff is granted immediate vacant possession of the property as described in certificate of title No 16812, lot 26 on DP 3971 "Tamavua" (part of) containing an area of 32.2 perches and situated in the District of Suva and Island of Viti Levu.
       
    2. The Plaintiff is awarded with cost of $1000, assessed summarily.
       

Dated at Suva this 01st day of August, 2014.

R.D.R. Thushara Rajasinghe
Master of High Court, Suva