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Wati v Raji [1996] FJHC 105; Hbc0283j.95s (8 March 1996)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 0283 OF 1995

Between:

1. VIDYA WATI
2. SUBHAS CHAND a.k.a. SHUBAS CHAND
3. KAMLESH CHAND
(The Executors and Trustees
of the ESTATE of MOTI CHAND)
Plaintiffs

- and -

MUKH RAJI (MRS. RAM NARAYAN)
Defendant

Mr. M.V. Bhai for Plaintiffs
Mr. M. Patel for Defendant

JUDGMENT

On the 9th of June 1995 the plaintiffs issued a summons under Section 169 of the Land Transfer Act 1971 seeking an order for vacant possession of a piece of land occupied by the defendant in Navua.

The application was based upon a 'Notice to Quit' dated 1st November 1993 which terminated the defendant's yearly tenancy on the 31st of December 1994 and which was apparently personally served on the defendant on the 3rd of November 1993.

I say 'apparently' because the defendant in her affidavit in opposition deposed that "... nothing was served on me except the originating summons herein" (para.5). More specifically, she denied in a supplementary affidavit "... that any Notice to Quit was ever served on (her)" (para.11).

There is however in the file an 'affidavit of service' from a taxi driver of Naitata, Navua, to the effect that:

"... (he did) on Wednesday the 3rd of November 1993 at 9.00 a.m. at Naitata, Navua at her residence personally serve MUKH RAJI (Mrs. Ram Narayan) of Naitata, Navua, Fiji, Domestic Duties, NOTICE TO QUIT dated 1st November 1993 terminating her tenancy on 31st December 1994 or thereafter."

He also deposed to the defendant's refusal to sign a copy of the Notice evidencing her receipt of the same. There is no mention however of how? or with whose? help (if any) he was able to identify the defendant as should have been deposed.

The defendant also deposed that the land in question had been occupied by her in-laws 'since girmit time and thereafter by (her) when (she) got married'. In support of her occupancy she annexed several rental receipts. The earliest of which dates back to February 1974. Clearly her occupancy of the land extends beyond 20 years.

Kamlesh Chand an executor and trustee of the Estate to which the land belongs whilst accepting that the defendant's late husband had been given a small houseblock at a yearly rental of £18, nevertheless deposes that rental arrears of $1,800.00 have accumulated since before and after his death in the early eighties and remains outstanding.

Counsel for the defendant in opposing the application drew the Court's attention to various paragraphs in the defendant's affidavits and submitted firstly, that there was a serious dispute as to whether or not a 'Notice to Quit' had been given to the defendant as required in terms of Section 89(2) of the Property Law Act (Cap. 130) and Section 169(c) of the Land Transfer Act (Cap. 131), and secondly, that having regard to the length of uninterrupted occupation by the defendant and her predecessors in title some sort of 'proprietary estoppel' had been raised in the defendant's favour.

Dealing firstly with the 'Notice to Quit' issue, as earlier noted, there is before the Court an 'affidavit of service' of the 'Notice to Quit' filed on the 10th July 1995. Equally there is the defendant's sworn denials of ever being served with a 'Notice to Quit'. They both can't be right, but, does such a bare denial inevitably raise a triable issue? In my view it does not.

Scott J. in rejecting a similar submission in Ram Narayan Jokhan v. Shiu Prasad Civil Action No. 13 of 1993 said at p.4:

"The mere denial of having received a notice to quit is a simple and easy way of frustrating proceedings brought under Section 169(c) and the Court will be exceptionally vigilant and ensure that such a denial is advanced bona fide."

In this case bearing in mind the plaintiff's acceptance that the defendant was a yearly tenant and the defendant's recorded refusal to sign on a copy of the notice (which counsel suggests lends credence to the affidavit of service), and the residential address of the process-server, and bearing in mind the bald nature of the defendant's denial and the absence of an application to cross-examine the process-server, I hold that the defendant was properly served with the 'Notice to Quit'. It is noteworthy that the same process-server was employed to serve the Originating Summons in this case and in this latter regard there has been no similar denial of service made against him. This complaint is accordingly dismissed as being without merit.

There was also a suggestion that having regard to the size of the land that was being occupied by the defendant and the cultivation that had been carried out on it, she might be entitled to make an application under the Agricultural, Landlord and Tenant Act (Cap. 270). It is common ground however, that no such application has ever been lodged on behalf of the defendant nor has any 'evidence worthy of evaluation by an Agricultural Tribunal' been brought to this Court's attention sufficient to raise a threshold 'ALTA question' (See: Lotan v. Douglas Garrick F.C.A. Civil Appeal 45 of 1984).

Turning finally to the question of 'proprietary estoppel'. Suffice it to say that the mere occupation of a piece of land on a yearly tenancy for whatever length of time, is not a circumstance capable of giving rise to any form of 'estoppel', proprietary or otherwise, nor in my view is any 'equity' created thereby which the court would protect.

The application accordingly succeeds. There will be an order for vacant possession granted in favour of the plaintiffs with execution stayed for 3 months from the date of service of the order on the defendant.

(D.V. Fatiaki)
JUDGE

At Suva,
8th March, 1996.

HBC0283J.95S