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Chand v Gokul [2024] FJHC 411; HBC12.2024 (4 July 2024)

IN THE HIGH COURT OF FIJI
NORTHERN DIVISION
AT LABASA

[CIVIL JURISDICTION]

Civil Action No. HBC 12 of 2024

BETWEEN :
UMESH CHAND of Savusavu.
PLAINTIFF

AND :
SHARDA NAND GOKUL aka SHARDHA NAND GOKUL together with his AGENTS and/or SERVANTS of Lot 17 DP 3189, Lesiaceva Road, Nveria-Daku, Savusavu.
DEFENDANT

Before : Acting Master L. K. Wickramasekara

Counsels : Lajendra Lawyers for the Plaintiff
Jiten Reddy Lawyers for the Defendant

Date of Hearing : Monday, 01^st July 2024
Date of Judgment : Thursday, 04^th July 2024

JUDGMENT

01. Plaintiff in this matter, by way of an Originating Summons filed on the 06/03/2024, is moving for an order of vacant possession of the property as described in the said Summons, under section 169 of the Land Transfer Act 1971. This summons is supported with an affidavit of the Plaintiff sworn on the 04/03/2024.

02. Defendant through his counsel had filed an Affidavit in Opposition on the 10/05/2024, sworn by the Defendant, on the 10/05/2024.

03. Plaintiff has filed an Affidavit in Reply on the 29/05/2024, as sworn on the 24/05/2024.

04. The matter was heard before this Court on Monday, the 01/07/2024, and counsels for both parties made submissions on the matters raised by the Court without prejudice. Both the parties further relied on the comprehensive written submissions filed on the 11^th and 12^th of June 2024 respectively.

05. This Court now proceeds to make its judgment having considered the relevant affidavit evidence of the parties, the submissions made during the Hearing and the comprehensive written submissions filed.

06. As per the Affidavit in Support of the the Plaintiff, it is submitted that the Plaintiff is the last registered proprietor of the property described in the Certificate of Title No. 10371 being Lot 47 on Depositted Plan No. 2196 “Natuvu” (Part of), situated in the District of Savusavu and Island of Vanua Levu containing an area of 25.6 perches. A duly certified copy of the Certificate of Title No. 10371, as issued by the Registrar of Titles, has been annexed to the affidavit in support. Further, a copy of an eviction notice issued to the Defendant on the 18/12/2023 is also annexed to this affidavit.

07. It is further submitted by the Plaintiff that the Defendant is occupying the said property without any right to remain in possession.

08. However, pursuant to the ‘Notice to Evict’ as issued by the Plaintiff on the 18/12/2023, it is stated that the Defendant is a ‘Tenant’ and that he is been given 30 days to vacate the said property. Surprisingly, there’s no reference to any agreement to lease and/or any tenancy agreement between the parties or any reasons given in the said notice as to when and/or why the tenancy of the said ‘Tenant’ has been terminated.

09. As per the Affidavit in Opposition of the Defendant, it is submitted that the Defendant had been the previous owner of the property in question. The Plaintiff has purchased the said property pursuant to a ‘Sales and Purchase Agreement’ made on the 20/03/2023. A copy of the said Agreement has been annexed to the affidavit of the Defendant.

10. Defendant does admit that the Plaintiff is the current registered proprietor of the said property in question and that he has also received the ‘Notice to Evict’ as issued by the Plaintiff on the 18/12/2023.
    
11. It is, however, submitted by the Defendant that he has a right to remain and occupy the said property in question pursuant to the terms agreed upon by the Plaintiff as per the ‘Sales and Purchase Agreement’ dated 20/03/2023. In particular, the Defendant has relied upon clauses ‘V (c), VI, and 6 (d)’ of the said Agreement.
    
12. I shall reproduce the said clauses in verbatim in this Ruling for the sake of clarity,
    

“(V) (c) The rear portion of Lot 47 is currently occupied by the Vendor, trading as “Gokuls Spare Parts” from which he operates car repair and spare parts business. A timber and corrugated-iron office, repair workshop, spare-parts store and shed are erected on the rear of Lot 47 from which the Vendor operates his Car Repair Garage and Spare-parts business. The Vendor wishes to continue operating his “Gokuls Spare Parts” business from the rear portion of Lot 47.

(VI) Subject to certain terms and conditions the Purchaser is willing to allow the Vendor to lease the rear portion of Lot 47 to enable him to continue operating his “Gokuls Spare Parts” business from Lot 47. The Purchaser is not willing to give an assurance to the ongoing operation of the “Gokuls Car Wash” business from the rear portion of Lot 46 as that area may be needed by the Purchaser or by the new Tenants of the two-story concrete building on Lot 47. The Purchaser is willing to take possession of the Properties at settlement with the current occupants in situ and will decide on the future occupancy and tenancy of Lot 46 after settlement.

(6) (d) The Purchaser shall and hereby agrees to lease the said rear portion of Lot 47 to the Vendor trading as “Gokuls Spare Parts” for his Car Repair Garage and Spare Parts business, for a term of not less than 3 years at a monthly rental of $500.00 +VAT for the first 2 years and then increasing to $1,000.00 +VAT per month for the third year. The Vendor shall also pay for the electricity and water usage for his business and shall not create or cause any nuisance or obstruction to the Purchaser or his Tenants in the two-story building on Lot 47. The Vendor and his clients shall be permitted and enabled to access the rear of Lot 47 via the existing entry and driveway through the front of Lot 46, but the Purchaser may at his cost later change the entry and driveway to a new location across the rear of Lot 46. The parties shall enter into an appropriate formal Lease Agreement to give effect to the covenants herein. Such formal Lease Agreement shall be entered into by the parties within not more than 14 (fourteen) calendar days from the Date of Completion, failing which the Purchaser will be at liberty to lease out the said portion of the Properties to any third parties.”

13. Defendant’s position is that pursuant to the above clauses in the ‘Sales and Purchase Agreement dated 20/03/2023, the Defendant has a right to occupy the property in question and that the Plaintiff’s action to abruptly evict him from the said property is in breach of the said Agreement.
    
14. Defendant has further submitted that pursuant to the above clauses in the ‘Sales and Purchase Agreement’ dated 20/03/2023, he had pursued to have the ‘Lease Agreement’ for the property in question drawn up, but the Plaintiff had manifestly failed and/or refused to enter into any such ‘Lease Agreement’, claiming that the Defendant should trust the Plaintiff and that he will not have the Defendant evicted at any time.
    
15. In the Affidavit in Reply, the Plaintiff has apparently admitted to the agreement regarding the tenancy between the Plaintiff and the Defendant, as created by the ‘Sales and Purchase Agreement’ dated 20/03/2023. However, the Plaintiff has now submitted that the Defendant was a monthly tenant and was occupying the said property in question without duly paying the rent as agreed between the parties pursuant to the said ‘Sales and Purchase Agreement’ dated 20/03/2023.
    
16. Plaintiff has further submitted that the Defendant has become a tenant of the Plaintiff from the 20/03/2023 as per the said ‘Sales and Purchase Agreement’. This fact is misleading and/or misconceived as the said ‘Sales and Purchase Agreement’ has fixed the ‘Settlement date’ at 120 days from the date of the Agreement (Pursuant to clause (5) of the Agreement) with any further extension to be mutually agreed to in writing by the parties. Defendant would only have become a tenant of the Plaintiff, pursuant to the said ‘Sales and Purchase Agreement’ upon the date of settlement of the transfer and not from the date of the Agreement. Unfortunately, it appears that the Plaintiff has opted not to reveal the date of settlement.
    
17. It is also claimed by the Plaintiff in his Affidavit in Reply, that he had entered into another agreement with the Defendant to purchase the Defendant’s business, namely, ‘Gokuls Car Wash’, operated at Lot 46, and the purchase price of the same to be set-off against the rent due from the Defendant for the Lot 47, from July to September 2023.
    
18. In the Hearing, the Court invited both the parties to consider a settlement, without prejudice. The parties, however, were not able to come to a settlement and have relied upon the affidavit evidence and the written submissions in support of their respective arguments made at the hearing.
    
19. The procedure under the section 169 of the Land Transfer Act Cap 131 is a summary procedure to restore the registered proprietor promptly and speedily to the possession of the subject property when the occupier is unable to show his or her right to possess the particular land. This section provides a speedy procedure for obtaining possession where the occupier can show no cause why an order should not be made: Mishra JA in Jamnadas v Honson Ltd [1985] 31 FLR 62 at page 65.
    
20. The rationale for this speedy remedy available for the registered proprietors stems from the cardinal principle of the statute that, the register is everything and in the absence of any fraud, the registered proprietor has an indefeasible title against the entire world. The Fiji Court of Appeal in Subaramani v Sheela [1982] 28 FLR 82 (2 April 1982) held that:
    

The indefeasibility of title under the Land Transfer Act is well recognised; and the principles clearly set out in a judgment of the New Zealand Court of Appeal dealing with provisions of the New Zealand Land Transfer Act which on that point is substantially the same as the Land Transfer Act of Fiji. The case is Fels v. Knowles 26 N.Z.L.R. 608. At page 620 it is said:

"The cardinal principle of the statute is that the register is everything, and that, except in case of actual fraud on the part of the person dealing with the registered proprietor, such person, upon registration of the title under which he takes from the registered proprietor, has an indefeasible title against all the world."

21. The relevant provisions of the Land Transfer Act Cap 131 are as follows.

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 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.

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 and may be enforced as a judgment in ejectment.

Dismissal of summons

172. If the 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, mortgagee or lessor or 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:

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.

22. The burden to satisfy the court on the fulfillment of the requirements under section 169 and 170 is on the Plaintiff and once this burden is discharged, it then shifts to the Defendant to show his or her right to possess the land. The exercise of the Court’s power either to grant the possession to the Plaintiff or to dismiss the summons depends on how the said burden is discharged by the respective party to the proceedings.
    
23. The Plaintiff in his affidavit in support has submitted that he is the registered proprietor of the land described in the summons. For proof of the said averment, he has annexed the duly certified Copy of the Certificate of Title No. 10371 as certified on 26/02/2024 by the office of Registrar of Titles.
    
24. Pursuant to the dealing on 30/06/2023, as appearing on the Certificate of Title No. 10371, the said property in question has been transferred to the Plaintiff only on the 30/06/2023.
    
25. The Defendant in his Affidavit in Opposition has admitted this title and does not dispute the fact that the Plaintiff is the last registered proprietor of the said property in question.
    
26. The second requirement is the particulars to be stated in the summons, which is description of the land as required by section 170. The relevant land has been clearly described in the summons pursuant to the Certificate of Title No. 10371. There has been no challenge over the description of the land.
    
27. Thus, I find that the above requirement too is established, and that the Plaintiff has discharged the onus cast by sections 169 and 170 of the Act on him as per this application.
    
28. Therefore, the onus now shifts to the Defendant to show his right to possess the land and premises in dispute in this application. The Supreme Court in the case of Morris Hedstrom Limited –v- Liaquat Ali CA No: 153/87 said that:

"Under Section 172 the person summonsed may show cause why he refused to give possession of the land if he proves to the satisfaction of the Judge a right to possession or can establish an arguable defence the application will be dismissed with costs in his favour. The Defendants must show on the affidavit evidence some right to possession which would preclude the granting of an order for possession under Section 169 procedure. That is not to say that final or incontrovertible proof of a right to remain in possession must be adduced. What is required is that some tangible evidence establishing a right or supporting an arguable case for such a right must be adduced." (Emphasis added)

29. The duty on the Defendant is not to produce any final or incontestable proof of his right to remain in the property, but to adduce some tangible evidence establishing a right or supporting an arguable case for his right.
    
30. Generally, the defenses available for a Defendant in this application are the equitable rights and the adverse possession.
    
31. Section 78 of the Land Transfer Act provides for the adverse possession. If one looks to the possession of the occupier and finds that his occupation and/or his right to occupation is derived from the owner in the form of permission or agreement or grant, it is not adverse, but if it is not so derived, then it is adverse. Adverse possession must be open, not secret; peaceful, not by force; and adverse, not by consent of the true owner: Sir Nigel Bowen CJ in Mulcahy v Curramore Pty Ltd [1974] 2 N.S.W.L.R. 464 at 475.
    
32. Romer LJ in Moses v Lovegrove [1952] 2 Q.B 533 stated at 544:

“It seems to me that one can, in addition to looking at the position and rights of the owner, legitimately look also at the position of the occupier for the purpose of seeing whether his occupation is adverse. In my opinion, if one looks to the position of the occupier and finds that his occupation, his right to occupation, is derived from the owner in the form of permission or agreement or grant, it is not adverse, but if it is not so derived, then it is adverse, even if the owner is, by legislation, prevented from bringing ejectment proceedings”.

33. Slade LJ in Buckinghamshire County Council v Moran [1989] 2 ALL E.R. 225 at 232-233 stated:

“Possession is never ‘adverse’ within the meaning of the Act if it enjoyed under a lawful title. If, therefore, a person occupies or uses land by license of the owner with the paper title and his license has not been duly determined, he cannot be treated as having been in ‘adverse possession’ as against the owner with the paper title”.

34. In this case, it is apparent that the Defendant cannot rely on the defence of adverse possession according to the above authorities as the occupation and/or the right to occupy of the Defendant, as submitted by him in his Affidavit in Opposition, has come by way of a ‘Sales and Purchase Agreement’ between the Plaintiff and the Defendant, entered into at the time the Plaintiff had purchased the said property in question. It is therefore clear that the occupation was with the consent of the Plaintiff and is not adverse.
    
35. Defendant’s position is to the effect that the Plaintiff at the time of purchase of the said property in question has agreed in writing (the Sales and Purchase Agreement dated 20/03/2023) to lease the said land to the Defendant for three years on the terms as outlined in the said Agreement. However, it is alleged that the Plaintiff has breached the said Agreement by manifestly failing to adhere to the terms outlined in the said Agreement by not formally entering into a ‘Lease Agreement’ and as well as attempting to evict the Defendant from the property in question, in violation of the said Agreement.
    
36. It is clear that pursuant to the Sales and Purchase Agreement dated 20/03/2023, there is a clear agreement and/or a promise for the said property in question to be leased out to the Defendant for three years and a formal lease agreement should have been entered into by the parties within 14 days from the date of settlement.
    
37. The Plaintiff failed to reveal any facts whatsoever in respect of the said ‘Sales and Purchase Agreement’ in his Affidavit in Support filed on the 06/03/2024.
    
38. However, in contrast, in the Affidavit in Reply filed on the 29/05/2024, the Plaintiff has admitted to the existence and the contents of the said Sales and Purchase Agreement.
    
39. But the Plaintiff has therein taken up a different position as opposed to his position in the Affidavit in Support and has claimed that the Defendant failed to enter into the formal Lease Agreement as stipulated by the ‘Sales and Purchase Agreement’ dated 20/03/2023 and therefore the Defendant should only be considered a ‘monthly tenant’.
    
40. Plaintiff has further advanced another new position that the Defendant has failed to pay the monthly rent duly on time and thus the reason for the attempt to evict him. However, pursuant to the ‘Notice to Evict’ as issued by the Plaintiff on the 18/12/2023, there is no such claim made against the Defendant of failing to pay the rent duly on time.
    
41. Following the above facts, it is now essential to proceed to a discussion on the legal concept of equitable right over a property. Such a right, for a long time, was believed to be either on ‘promissory estoppel’ or on ‘proprietary estoppel’. Snell's Principles of Equity (28th Edition 1982) at page 556 state the rule of ‘promissory estoppel’ as follows.
    

“Where by his words or conduct one party to a transaction freely makes to the other an unambiguous promise or assurance which is intended to affect the legal relations between them (whether contractual or otherwise) a, and before it is withdrawn, the other party acts upon it, altering this position to his detriment, the party making the promise or assurance will not be permitted to act inconsistently with it. It is essential that the representor knows that the other party will act on his statement. Yet the conduct of the party need not derive its origin only from the encouragement of representation of the first; the question is whether it was influenced by such encouragement or representation”. (Emphasis added)

42. Accordingly, the conditions for the promissory estoppel can be identified as follows,
    

(a) word or conduct which can freely make an unambiguous promise,

(b) intention to affect the legal relations and

(c) other party’s action altering position before withdrawal of promise.

43. The other equitable remedy is the ‘proprietary estoppel’. Snell's Principles of Equity (28th Edition 1982) at page 558, expounds the rule on proprietary estoppel. It states:

“Proprietary estoppel is one of the qualifications to the general rule that a person who spends money on improving the property of another has no claim to reimbursement or to any proprietary interest in the property. Proprietary estoppel is older than promissory estoppel. It is permanent in its effect, and it is also capable of operating positively so as to confer a right of action. The term "estoppel", though often used, is thus not altogether appropriate. Yet the equity is based on estoppel in that one is encouraged to act to his detriment by the representation or encouragement of another so that it would be unconscionable for another to insist on his strict legal rights”.

44. At pages 560 and 561 the conditions for the proprietary estoppel have been explained with the illustrations as follows.
    
    • (1) Expenditure. In many cases A has spent money on improving property which in fact belongs to O, as by building a house on O’s land, or by doing repairs to O’s house and paying mortgage instalments and other outgoings, or by contributing to a joint venture to be carried out on O’s land, or by paying premiums required to maintain O’s life insurance policy.
      

(b) Expectation or belief. A must have acted in the belief either that he already owned a sufficient interest in the property to justify the expenditure or that he would obtain such an interest. But if A has no such belief and improves land in which he knows he has no interest or merely the interest of a tenant (or licensee), he has no equity in respect of his expenditure.

(c) Encouragement. A’s belief must have been encouraged by O or his agent or predecessor in title. This may be done actively, as where a father persuades his son to build a bungalow on the father’s land, or a mother assures her daughter that she will have the family home for her life, or a man assures his former mistress that the house in which they lived together is hers.

(d) No bar to the equity. No equity will arise if to enforce the right claimed would contravene some statute or prevent the exercise of a statutory discretion or prevent or excuse the performance of a statutory duty.

45. As highlighted in the foregoing paragraphs, the Plaintiff in his Affidavit in Reply has admitted to the ‘Sales and Purchase Agreement’ dated 20/03/2023. It is apparent that as per clauses (VI) and 6 (d) of the said Agreement the Plaintiff has extended a specific promise to the Defendant to have the said property in question to be leased out to the Defendant for three years subject to the terms and conditions as agreed between the parties in the said Agreement. Whether such promise was negated on the failure of the parties to enter into a formal lease agreement shall be a question of fact, which necessarily needs further evidence to arrive at a final decision.
    
46. Plaintiff now alleges that it was the Defendant who failed to come into a formal agreement for lease as stipulated by the terms in the said ‘Sales and Purchase Agreement’. The Defendant, however, claims otherwise and submits that it was the Plaintiff who failed to duly enter into a formal lease agreement. This issue thus becomes a matter that needs to be carefully decided on evidence duly submitted at a trial in proper. It is clearly not a matter that can be decisively considered on untested affidavit evidence at a summary proceeding.
    
47. Moreover, pursuant to the recent Supreme Court decision in Raj Datt v Sunil Datt & Others; Civil Petition No. CBV 0008 of 2020 (30 June 2023), “rights in personam” has also been recognized by their Lordships as an exception to indefeasibility of the title. Their Lordships in the Supreme Court held as follows.
    

“Rights in personam

[48] In the absence of sufficient evidence of fraud on the part of the First Respondent or on the part of his mother Sheela Wati before him the First Respondent’s title to land lease 14796 may be defeated by the “rights in personam” exception to indefeasibility. In Wati v Kumar (supra) Keith J at para 45 acknowledged that section 39 of the Land Transfer Act did not defeat the creation of a beneficial interest in equity. Keith J continued in paragraph 45:

“In brief the ‘rights in personam exception’ arises where (a) the registered proprietor knew of the factor which gave rise to someone else having an equitable interest in the land and (b) he proceeded to register his title to the land despite that in circumstances in which it would be unconscionable for him to retain his registered interest in the land.”

48. Further, it was held in this case that considering the knowledge of the ‘current owner’ of the rights of the occupier, the title obtained by him/her may not be indefeasible.
    

“[49] Considering the facts that were not disputed and the totality of the evidence adduced at the trial by the Petitioner I have concluded that Sheela Wati and Sunil Datt were aware of the facts that gave rise to the Petitioner’s equitable interest in a one quarter share of lease 10093. They were aware of the existence of the Deed and its terms. They were aware of the arrangements that existed upon relocation. Upon the death of Rudra Datt, they had indicated that they had no objection to the Petitioner continuing to reside on the property. That remained the position until August 2002 when, having acquired a title to land lease 14796 following subdivision, Sunil Datt wrote to Raj Datt giving notice that the Petitioner was to vacate the quarter acre that he occupied and upon which (you) “have built your residence.” It is in that context that I have concluded that it would be unconscionable for Sunil Datt to retain the legal title to all the land in lease 14796. In my opinion Sunil Datt’s title to land lease 14796 is not indefeasible.”

(Emphasis added)

49. In the current case, the Defendant was the previous owner of the property in question. When the land was sold to the Plaintiff, the parties had come to a written agreement for the Plaintiff to lease out the property in question back to the Defendant for three years. Whether or not a formal lease agreement was entered into between the parties, the Plaintiff clearly had the knowledge of an equitable right of the Defendant to occupy the said property in question following the expressed promise made by him pursuant to the said ‘Sales and Purchase Agreement’. As mentioned in the foregoing paragraphs, any alleged breach on the part of either party shall be a matter for determination on evidence at a trial in proper.
    
50. Moreover, there is no clear evidence that the Plaintiff had, in fact, treated the Defendant only as a ‘monthly tenant’ in the absence of a formal lease agreement. Even in the ‘Notice to Evict’ as issued by the Plaintiff on the 18/12/2023, such a fact has not been mentioned. It simply states that the Defendant is ‘currently occupying as a Tenant’.
    
51. In the above circumstance, it clearly becomes a question of fact whether the Defendant had such knowledge over the alleged status of a ‘monthly tenant’ as alleged by the Plaintiff or that the Defendant believed his occupancy to be purely on the conditions and/or promise created by the ‘Sales and Purchase Agreement’ dated 20/03/2023.
    
52. Added to the above issues, is the fact that the Plaintiff failed to reveal and/or his reluctance to declare any facts regarding the ‘Sales and Purchase Agreement’ dated 20/03/2023 when this application was initially brought before the Court. This, in my view, is a factor the Court may legitimately consider at a trial in proper, especially when considering the credibility of the evidence of the parties.
    
53. In view of the above discussion and findings of the Court and guided by the decision of the Supreme Court in the case of Raj Datt v Sunil Datt & Others (Supra), it is my considered view that there are more complicated facts that needs to be determined in the dispute between the Plaintiff and the Defendant, which fortifies the view that a trail proper is essential in this matter to fully decide the issues between the parties. I further find that the serious questions which exist between the parties in this case are not at all possible to be determined through affidavit evidence in a summary proceeding.
54. It is settled law that, complicated facts and issues cannot be investigated and determined only on affidavits at a summary proceeding (Lal v Schultz [1972] FJLawRp 27; [1972] 18 FLR 152 (30 October 1972); Devi v Sharma [1985] FijiLawRp 3; [1985] 31 FLR 130 (1 January 1985); Wati v Vinod [2000] FijiLawRp 56; [2000] 1 FLR 263 (20 October 2000).
    
55. The above analysis reveals that, although the Plaintiff appears as the last registered proprietor of the subject property, the affidavits filed by both the Plaintiff and the Defendant clearly indicate that, there are many complicated issues that are to be determined in this matter. These issues cannot adequately be investigated and dealt within a summary proceeding in Chambers.
    
56. In conclusion, a trial proper is necessary in this case for adjudicating all the complicated issues, as it is not safe to determine this matter on affidavits in Chambers. It therefore necessarily follows that this summons should fail on the above findings and thus needs to be dismissed.
    
57. However, the dismissal of this summons shall not operate as a bar to the Plaintiff to commence other proceedings against the Defendant.
    
58. In consequence, the following orders are made.
    
    1. Summons filed by the Plaintiff on 06/03/2024 is hereby dismissed and struck out, subject to the following orders.
       
    2. Until the underline issues (as identified in this ruling) between the parties are decided in any other proceeding at a trial in proper, the Defendant shall continue to pay the due rent over the property in question to the Plaintiff, as agreed between the parties through the ‘Sales and Purchase Agreement’ dated 20/03/2023.
       
    3. Any overdue rent on the property in question shall be cleared by the Defendant within 14 days from the date of this Judgment.
       
    4. Parties shall bear their own costs of these proceedings.
       

L. K. Wickramasekara,

Acting Master of the High Court.

At Labasa
04/07/2024.