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Maybin v Lavaki [1994] FJHC 169; Hbc0464.94s (10 November 1994)

IN THE HIGH COURT OF FIJI
(AT SUVA)
Civil Jurisdiction

CIVIL ACTION NO. HBC0464 OF 1994S

BETWEEN:

PATRICK JAMES MAYBIN
and
JOHN WEBSTER ST JULIAN
as trustees of the
ROYAL SUVA YACHT CLUB
Plaintiffs

and

MAJORIE THOMAS LAVAKI
Defendant

W. Morgan for the Plaintiffs
R. Matebalavu for the Defendant

DECISION

This is an Application for possession of restaurant premises situated at the Royal Suva Yacht Club (the Club) brought pursuant to the provisions of section 169 of the Land Transfer Act, Cap. 131.

There are two relevant affidavits before me, the first by Mr. Maybin sworn on 13 September 1994 and the second by the Defendant sworn on 25 October 1994. There are also two written submissions prepared by Counsel.

There is no substantial issue on the facts which may be briefly stated. In 1991 the Club and the Defendant entered into an Agreement whereby the Defendant leased the Club's restaurant premises for a period of 2 years. (See Exhibit D to the first affidavit). The lease provided (paragraph f page 4) that upon the Defendant giving 3 months notice of intention to renew, the Club would then extend the lease for a further 3 years.

On 15 April 1993 the Defendant duly gave the Club the required 3 months notice. On 10 August the Club wrote to the Defendant (first affidavit, Exhibit G) advising her that the Club had agreed to renew the lease for one year. The second paragraph of that letter reads as follows:

"With regard to conditions of the lease I confirm that the conditions stated in paragraphs 2 (a) - (k), 3 (a) - (c) ii, 4 (a) - (h) and at (sic) Special Provisions of the current restaurant lease document dated 15 August 1991, will apply. Provided however that the conditions stated in first paragraph of this letter supersede relevant clauses. Any extension of the lease beyond 15 August 1994 will be on mutual agreement of both parties."

On 17 August the defendant wrote to the Club (first affidavit, Exhibit H). The first paragraph of her letter read as follows:

"With reference to the letter of offer for the extension of lease dated 10 August 1993 this is my official acceptance".

On 14 June 1994 the Defendant again wrote to the Club seeking an extension of her "one year contract" (first affidavit Exhibit I).

Unfortunately the Club decided not to renew the lease and advised the Defendant in a letter dated 4 August 1994 (first affidavit, Exhibit K). As is clear from the letter the Club required the Defendant to vacate the restaurant premises by no later than 15 August 1994. The Defendant refused and on 13 September 1994 these proceedings were commenced.

As appears from Counsels' written submissions the issues calling for decision are as follows:-

1. Given the nature of the Plaintiffs and Defendants cases are proceedings under the provisions of section 169 suitable for determination of the issues raised?
   
2. Given that no notice to quit was served on the Defendant does this Court have jurisdiction to entertain the Plaintiffs application?
   
3. Given that the Club occupies its premises under a protected lease within the meaning of section 13 of the State Lands Act (Cap. 132) what effect does the admitted failure of either of the Parties to obtain the consent of the Director of Lands have on the validity of the restaurant lease?
   
4. Did the exchange of letters in 1993 amount to a variation of the lease?
   

The arguments for and against are carefully and fully set out in the written submissions and need not now be repeated in full.

On the first issue I am satisfied that the summary procedure provided by the Act is suitable for the disposal of this matter. Where complicated questions of fact involving allegations of fraud are concerned the section 169 procedure is not suitable (see Shyam Lal v. Eric Martin Schultz FCA21/72). But here the issues are relatively straightforward and the essential facts are not disputed.

In support of his argument based on the lack of a notice to quit Mr. Matebalavu referred to section 169 (c) of the Act. He also cited Abdul Aziz v. Maniben Brij Lal Kapadia (FCA53/78). But the Plaintiff's case here is either (a) that there was no valid lease at all or (b) but if there was a valid lease then the term of that lease has expired. In these circumstances Mr. Morgan argues that no notice is required. I agreed.

Examination of Abdul Aziz's case shows that the reason the Fiji Court of Appeal sought proof of the precise terms of the notice to quit was that the Plaintiff in that case was a lessor who had terminated the lease by notice and who therefore was proceeding under section 169(c) following service of the notice. In this case, however, the Club is proceeding either under section 169(a) in its' capacity as the last registered owner of the land or alternatively under section 169(c) where the term of the lease has expired. In neither case is a notice to quit necessary.

The effect of section 13 of the State Lands Act is crucial to the Club's case and in my view it is conclusive. It should be remembered that this is not a case where there was merely an agreement for a lease or other alienation of the land. In this case a lease was actually signed therefore none of the problems which have faced the Courts dealing with inchoate agreements apparently in conflict with the section or its' Native Land equivalent arise (See e.g. Kulamma v. Manadan Privy Council 7/66 and Sheila Maharaj v. Jay Chand [1986] AC 898 as well as the leading case Chalmers v. Pardoe [1963] 1 WLR 677).

Where protected land is sub-leased without the consent of the Director of Lands first had and obtained the sub-lease shall be null and void (section 13 (1)). In my view there is no answer to the Plaintiff's submission on this point. It may perhaps seem odd that a landlord who himself has been a party to an unlawful alienation should be able to take advantage of his own default but the purpose of the protection given by the Act is primarily to ensure the well being of the land and not the landlord and I know of no case where the Court has refused relief to a landlord in the position in which the Club now finds itself.

Being of the view that the lease was, from the first, null and void it must follow that any variation or extension of the lease was itself void and therefore issue (iv) needs no further consideration.

In all the circumstances I am satisfied that the Defendant has failed to discharge the onus placed upon her by section 172 of the Land Transfer Act and I therefore grant the Club the Order for possession sought.

M.D. SCOTT
JUDGE

10 November, 1994

HBC0464.94S