ACTION NO. HBC0026 OF 1998
IN THE MAHE MATTER
of an Application for possession of land under
Section 169 of the Land Transfer Act, 1971
BETWEEN:KENNETH HUGH ROSS, ALISTAIR DONALD ROSS, ALE> ALEXANDER GAVIN ROSS, MARGARET IVI BROWN,
MARTIAL ALEXANDER ROSS GASPARD and the said Kenneth Hugh
Ross as trustee of FAY ROSS estate
Plaintiffs
AND:
MOHAMMED SHAMIM
(Father's name Khalil)
Defendant
Rmith for the Plaintlaintiffs
R.P. Singh for the Defendant
Dates of Hearing and Submissions: 3rd, 28th July, 11th August 1998
Date of Judgment: 26tember 1998
JUDGMENT
The Plhe Plaintiffs seek vacant possession from the Defendant of all that land comprised in Certificate of Title No. 27389, Lot 25,
D.P. 1459 at Nausori.
The Plaintiffs are the registered proprietors of the land and the Defendant is sued as a trustee of the estate of Khalil (father's
name Dalmir) "the deceased") who died in or about the year 1968/1969.
The application is made under Section 169 of the Land Transfer Act 1971 Cap. 131.
The Plaintiffs' predecessor in title leased the land to the deceased under Lease No. 50746, Lot 25 D.P. 1459 for a period of twenty-one
years from the 1st of June 1952 at the yearly rental and on the terms and conditions therein stated. The Lease was varied by mutual
agreement on the 25th of September 1953 and the Lease expired on the 31st of May 1973 after which the deceased and now his Estate
continued to lease the land on an annual tenancy basis.
By Notice dated the 6th of January 1997 and sent to the Defendant by registered post the tenancy was terminated with effect from the
31st of December 1997, or at the expiration of the year of his tenancy which expired next after the end of one half year from the
service thereof and the Defendant was requested to quit and deliver vacant possession of the land and to remove therefrom all structures
constructed thereon.
By letter dated the 28th of January 1997 from the Plaintiffs' solicitors the Defendant was requested to pay the rent and rates then
due.
Some questions arose about receipt by the Defendant of the Notice to Quit and letter of the 28th of January but eventually these questions
were resolved.
A further question arose about the service of the Notice of the 6th of January 1997 causing the solicitors for the Plaintiffs to write
a letter to the Defendant's solicitors on 17th June 1997. The letter also noted that the Defendant had sublet the premises to sundry
tenants in breach of the terms of the Lease. The letter also mentioned that the Defendant still owed ground rent from the 1st of
July 1996 to the 17th of June 1997 and that this was increased by the Prices and Incomes Board Order No. 116 of 1992 to the sum of
$730.00 per annum payable half yearly in advance in the months of January and July in each year.
The letter further stated that the amount of rent owing to the 31st of December 1997 was $1,095.00 and in addition a sum of $296.43
plus VAT and interest was due and owing in rates to Nausori Town Council to the 31st of December 1997.
The Defendant replied to this letter by a letter dated 17th December 1997 in which he stated that the increased assessment was exorbitant
and that he had written to the Minister of Finance for a review of the Order.
The Plaintiffs' solicitors responded by a letter dated 24th of December 1997 to the Defendant in which they said inter alia that irrespective
of whatever transpired between the Defendant and the Prices and Incomes Board, the Plaintiffs required vacant possession of the land.
This was not given so that a Summons for Ejectment now before the Court was issued on the 14th of January 1998.
The Defendant was given leave to file an Affidavit in Reply and this was sworn by the Defendant on the 11th of March 1998. In his
affidavit the Defendant stated for the first time that in a letter dated the 29th of September 1983 the Plaintiffs' solicitors wrote
to the deceased inviting the deceased to make a realistic offer to purchase the land which he was then occupying only as tenant-at-will
if he so desired.
Nothing then happened until the 28th of November 1991 when apparently Mr. Khalil spoke to the late Sir Robert Munro and offered the
sum of $16,000.00 for the land. The late Mr. Khalil confirmed this offer in a letter of that date to which, on the 4th of December
1991 the Plaintiffs' solicitors replied as follows:
"In reply to your letter of 28th November you will need to offer at least $21,000.00 cash for the above (land) to interest the
proprietors.
We await your reply."
The Defendant then apparently replied to Sir Robert Munro by letter dated 16th December 1991 in which he said this omitting formal
parts:
"ROSS ESTATE, NAUSORI
LOT 25, D.P. 1459
In reply to your letter dated December 4, 1991 regarding the above land, I hereby confirm that I am interested, willing and agree
to buy outright as freehold the said land at the price of $21,000.00 as stated in your offer letter.
Since you indicated that you are awaiting my reply, the above is my confirmed reply.
Looking forward to your assistance in having the necessary documents formulated please.
Faithfully yours,
Sgd.
...........
M.S. Khalil"
The Defendant then deposes that the Plaintiffs failed to honour the agreement and attend to the sale and purchase of the property
as agreed and that he now wishes to institute legal proceedings claiming that the letters referred to constitute a contract and for
specific performance of that contract.
An affidavit in response to the Defendant's affidavit has been sworn by Chattur Dasrath Singh a solicitor and partner in the firm
of the Plaintiffs' solicitors. He says that despite the statement by the Defendant that he was ready, willing and able to pay the
arrears of rent and rates as of 27th of March 1998 those arrears were still outstanding.
On behalf of the Plaintiffs Mr. Singh denies that the letter of the Plaintiffs' solicitors of the 4th of December 1991 was a counter-offer
and that the Defendant's letter of 6th December 1991 was an acceptance of a counter-offer. He says that after the Defendant's letter
of 16th December was received an interview took place between the Defendant and the late Sir Robert Munro during which Sir Robert
informed the Defendant that the letter of the 4th of December 1991 was sent in total error on his part and was withdrawn which he
confirmed by letter dated the 17th of December 1991 sent by registered mail to the Defendant confirming what he had said at the interview.
Lastly Mr. Singh denies the allegation by the Defendant that the two letters in November 1991 which are said to constitute an offer
and acceptance to sell and purchase the land for $21,000.00 are such in law.
I have received written submissions from the parties. For the Defendant it is said that the withdrawal of the offer to purchase took
place when the contract had been made and so could not be relied on by the Plaintiffs.
It is also submitted that the Plaintiffs are estopped from obtaining an order for vacant possession because of a letter dated 31st
December 1992 written by Kenneth Hugh Ross to a Mr. D. Patel at Nausori in which it is stated that it is the policy of the Plaintiffs
to provide long-standing tenants with the first opportunity to purchase freehold land in the estate and that many had done so. The
letter also states that no evictions have occurred nor have any properties been sold to third persons where the original lessees
or their descendants have still been in residence despite the fact that over the years numerous tenants had been in arrears of rents
or rates.
The law applicable to this case is well settled and is contained particularly in Section 169(b) and (c) which states so far as relevant
that the following persons may Summon any person in possession of land to show cause why vacant possession should not be given:
(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,...."
and, in (c) thereof:
"a lessor against a lessee or tenant where a legal notice to quit has been given ...."
The Plaintiffs submit that the Defendant being on his own admission in arrears with the rent, the lessor was entitled under Section
169(b) as having the power to re-enter the property.
I am satisfied that because of the arrears in rent and the fact that a Notice to Quit was properly served on the Defendant the onus
then shifts to the Defendant under Section 172 of the Land Transfer Act to satisfy the Court that he has a right to the possession
of the land.
As to the question whether or not an offer to sell the land and a counter-offer to purchase it were ever made I can only say that
it seems to me that they probably were but there is evidence that the offer to sell was withdrawn.
Whatever be the legal position concerning that in my judgment it is now too late for the Defendant to suddenly raise this issue after
well over 7 years from when the alleged offer and acceptance were made. In my judgment this is a classic example of the application
of the Maxim VIGILANTIBUS, NON DORMIENTIBUS, JURA SUBVENIUNT.
If the Defendant and his father genuinely believed that a contract had been made by those letters then I would have thought it reasonable
for them to take immediate steps to seek specific performance of that contract. They have done nothing so far. Indeed this seems
to be conceded by the Defendant in his affidavit of the 21st of April 1998 in which in paragraph 5 he says:
"That I am willing to purchase the land and say that alternative to the agreement made in the offer and acceptance, I had attempted
to negotiate a price with the Plaintiff without success."
The most the Defendant can say about legal proceedings to enforce the agreement is in paragraph 9 of the affidavit of the 11th of
March 1998 in which he says:
"I now wish to institute Court proceedings claiming inter - alia that the letters referred above constitute a contract and for
specific performance of that contract."
There is no evidence that any such proceedings have been instituted and in any event they would probably be statute barred by now.
As to the submissions by the Defendant about the policy of the Plaintiffs to provide certain tenants with the first opportunity to
purchase and that in spite of there being numerous tenants in arrears neither evictions nor sales to third persons have occurred,
I make two comments:
First there is no evidence of the latter allegation but secondly even if there were, neither the absence of any such evictions nor
an alleged policy of the Plaintiffs (the first allegation) would bind the Plaintiffs in law to sell the property to the Defendant.
To succeed on this question the Defendant would have to satisfy the Court that there was an option to purchase made by the Plaintiffs
and subsequently taken up by the Defendant. There is no such evidence in this case.
For these reasons I consider the Plaintiffs' have established their right to obtain vacant possession of the land and I therefore
make an order in the terms of the Summons for Ejectment of the 14th of January 1998. I also order the Defendant to pay the Plaintiffs'
costs which I fix at $300.00.
JOHN E. BYRNE
JUDGE
Hbc0026j.98s
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