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Attorney-General v Fiji Football Association [2002] FJHC 57; Hbc0110j.2001s (24 May 2002)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION HBC 110 OF 2001S

Between:

THE ATTORNEY GENERAL
Plaintiff

and

FIJI FOOTBALL ASSOCIATION
First Defendant

and

CHIEF EXECUTIVE OFFICER
FIJI FOOTBALL ASSOCIATION
Second Defendant

and

HAROLD BINGHAM
Third Defendant

I.Tuiloma for the Plaintiff
M.S.D. Sahu Khan for the Defendant

JUDGMENT

These are proceedings for the possession of premises known as Government Quarters 170 Beqa Place Veiuto brought pursuant to Section 169 of the Land Transfer Act (Cap 131-the Act).

The following affidavits were filed:

(i) Vilitati Mataitini, Executive Officer Quarters, Public Service Commission, 14 September 2001;
(ii) Bob Sant Kumar, Executive Secretary Fiji Football Association, 17 October 2001;
(iii) Vilitati Mataitini, 9 November 2001; and
(iv) Barma Nand, Director of Lands, 19 March 2002.

Although paragraph 3 of Mr. Kumar’s affidavit objected to the use of Vilitati Mataitini’s first affidavit Dr. Sahu Khan did not argue the point at the hearing and no obvious breach of Order 41 was apparent to me.

In summary Mr. Nand’s evidence was that the Director of Lands is the registered proprietor of the land upon which Quarters 170 is constructed (Barma Nand’s affidavit paragraph 1 and Exhibit BN 1) and that the Quarters were let to Mr. Washington Gonzales a football coach, for a three year period commencing 19 November 1997 at a monthly rental of $76.92 (Exhibit BNC 2) following a request received on about 5 November 1997 by the Permanent Secretary for Youth Employment Opportunities and Sports from the first Defendant.

Vilitati Mataitini’s evidence was that Mr. Gonzales retired from his position with the first Defendant sometime towards the end of the three year period but that the Quarters were not handed back to the Director of Lands. Notices to quit was served on the second Defendant in April 2000, August 2000 and October 2000 but were not complied with. On 9 January 2001 a final notice to quit was sent to the third Defendant who is apparently the first Defendant’s President and who was by then residing in Quarters 170. The third Defendant did not vacate. The originating summons was filed on 14 September 2001.

The Plaintiff’s case is that it is the registered proprietor of the land bringing proceedings against a lessee or tenant of the premises who has not complied with the legal notices to quit and/or whose lease has expired (see Section 169 (a) (c) of the Act).

Under the provisions of Section 172 of the Act the person in possession has the burden of establishing a right to the continued possession of the premises.

On behalf of the Defendants Dr. Sahu Khan advanced three arguments.

The first argument relied on Venkanna Rao v. Sanday (Suva S.C. Civ 19/77) and was to the effect that acceptance of rent by the Plaintiff in June, August, September and October 1991 (see Exhibits B, C, D and E of Mr. Kumar’s affidavit) amounted to the creation of a fresh tenancy.

The second submission relied on paragraph 4 of Mr. Kumar’s affidavit and in particular on sub-paragraphs (v), (vi), (vii) and (viii) and annexure A.

The third submission was that the papers gave rise to complicated issues of fact which were not suitable for resolution in Section 169 proceedings (see Shyam Lal v. Eric Martin Schultz FCA Reps 72/145).

In answer to Dr. Sahu Khan’s first argument Mr. Tuiloma referred me to Clarke v. Grant [1950] 1 KB 104; [1949] 1 All ER 768 which he suggested is authority for the proposition that the mere acceptance of rent after service of a notice to quit is not evidence of intention to create a new tenancy. He particularly emphasised that:

“the mere mistake of his agent in accepting the money as rent which has accrued is no evidence that the landlord was agreeing to a new tenancy.”

Clarke’s case was been followed in Fiji in Rao v. Sanday (1977) 23 FLR 120 (which overruled the only judgment cited by Dr. Sahu Khan) and Hassan v. Thoms (1984) 30 FLR 1. In the words of Speight VP:

“the crucial test in these cases of further dealings between landlord and tenant after notice to quit is: has any fresh agreement been reached between parties?”

As has been seen the final notice to quit was served in January 2001. These proceedings were commenced in October 2001. Dr. Sahu Khan suggested that the acceptance of rent was the clearest evidence of intention to revive the tenancy. I do not agree. There is nothing to show where or to whom the four post notice payments were made. Counter clerks accepting payment in the Fiji Civil Service are not legally qualified and are not required to assess the possible legal ramifications of accepting payment. The mere acceptance of rent by a PSC counter clerk does not in my opinion provide any worthwhile evidence of an intention by the Director of Lands to revive the tenancy of premises the possession of which the Public Service Commission had been attempting to regain for the previous 18 months.

The short answer to Dr. Sahu Khan’s second argument was provided by Mr. Tuiloma. All the documentary evidence suggests a three year lease to the FFA for occupation by Mr. Gonzales. In answer, Mr. Kumar without naming any of the persons involved suggested that the Quarters were “going to be provided to the (first Defendant) on a permanent basis”. The only material provided to support this suggestion was a letter apparently written by Dr. Sahu Khan in June 2001 exhibited to Mr. Kumar’s affidavit. I think it would have been better not to exhibit this letter (see John Watson v. Bish Limited FCA Reps 85/179). The letter refers to the premises being “engaged by Fiji FA on a reasonably permanent basis” (whatever that may mean) but again offers no details of how or when or with whom this agreement was reached. It is just because such claims can be so easily made and are so difficult to dispute that Section 59 (d) of the Indemnity Bailment and Guarantee Act (Cap 232) upon which Mr. Tuiloma relied requires contracts relating to land to be in writing. In my opinion no writing exists to support the Defendants’ claim.

Although Dr. Sahu Khan took every possible point available to the Defendants I am satisfied that this is a fairly straightforward case of holding over after determination of a tenancy. I do not find any complicated issues of fact requiring a trial. Vilitati Mataitini’s evidence that the quarters are “desperately needed” for the accommodation of entitled persons was not disputed. I order the Defendants to give possession of the premises to the Plaintiff by midday 13 June 2002.

M.D. Scott
Judge

24 May 2002