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Rati v Prasad [2003] FJHC 265; HBC0051J.2002B (28 October 2003)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

ACTION NO. HBC0051J OF 2002B

BETWEEN:

RAM RATI (f/n) Govind Ram,
PADMA WATI (f/n) Babu Lal and
KIRAN DEVI (f/n) Babu Lal, all of
Nasea, Labasa.
PLAINTIFFS

AND:

SURENDRA PRASAD
(f/n) Bal Ram, of Nasea, Labasa.
DEFENDANT

Counsel for the Plaintiff: Miss A Prasad: Messrs Gibson & Co. Labasa
Counsel for the Defendant: Amrit Sen: Messrs Maqbool & Co. Labasa

Date of Judgment: Tuesday 28 October, 2003
Time of Judgment: 9.30 a.m.

JUDGMENT

This is a s.169 LTA application. The Plaintiffs are executrices and trustees of an estate which includes real estate and specifically a State Lease No. 9344 and more particularly known as Lot 7 section 17 on Plan M 1927 situated in the township of Labasa. The Defendant, according to the Plaintiffs, has been in illegal occupation as tenant in part of the building erected on the above-described property. A notice to quit had been served on the Defendant and now followed by this Summons.

The Defendant is required under the provisions of s.169 to show cause why he should not give up possession of the property to the applicant. In his affidavit in reply, the Defendant concedes that he is in occupation of a part of the building erected on CL 9344. Nevertheless, he argued that he had been a paying tenant of the Plaintiffs and prior to the notice of 29 November 2001, he had entered into a “leasing arrangement” with the Plaintiffs. An unexecuted copy of the document was annexed to the affidavit. Furthermore, the Defendant contended that the Plaintiffs had no legal power to issue the s.169 Notice on 29 November 2001, as the estate only came under their authority by transmission registered on CL 9344 on 10 May 2002.

COURT’S CONSIDERATION

Under section 172 of the Land Transfer Act, the Defendant carries the onus of proving “to the satisfaction of the judge a right to the possession of the land.” The evidence to support such a claim is set out in the Defendant’s affidavit, which the Court has already referred to above.

In the first place, the Defendant argues that he has remained a paying tenant throughout the period and that at any rate he had entered into a leasing agreement with the Plaintiffs. But it is evident from the affidavit of the Plaintiffs and as well as from the submission of Counsel that no lease agreement or any written agreement of a sort had been entered into between the parties. In fact, according to the Plaintiffs, the Defendant had been offered a lease over the property, but had refused to sign the copy of the agreement sent to him, by their solicitors. There being no agreement for the continuation of the occupancy of the Defendant on the property, he becomes no more than a periodic tenant. The fact that the Defendant may have continued to pay a monthly rent, similar to the amount mentioned in the unexecuted lease agreement, does not change his status; that of being a tenant on a monthly basis. And being a tenant on a monthly basis, the tenancy it is determinable by notice to quit which should be given so as to expire at the end of the complete period of the tenancy.

In this instance the Notice to quit issued by the Plaintiffs was to expire at the end of the month. This is in accordance with the law.

There is only the remaining issue of whether the Plaintiffs as executrices and trustees of the estate, but who have yet to be registered as such on the certificate of the leasehold, at the time of giving the statutory notice to quit were the appropriate persons to give notice and bring this proceedings. Section 169 of the Act states that the following persons may bring applications:

“(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 counterail 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.”

As far as this present proceedings is concerned, the Plaintiffs must satisfy the Court that they belong to s.169 (a), they being “registered proprietors” of the land at the time of the bringing of these proceedings. Evidence presented to this Court clearly show that the registration through transmission by death, of the Plaintiffs as executrices and trustees was effected on 10 May 2002. The summons under s.169 was filed on 29 July 2002. There is therefore no question of the Plaintiffs not being the “registered proprietors” of the land at the time of the proceedings. The issue of whether the Notice to quit given by the Plaintiffs prior to their being registered on the leasehold certificate, was valid or not, is fully explored in the judgment of Gates J in Indar Prasad & Or. v. Pushpa Chand Ltka. CA No. HBC00384.1999. This Court agrees with the statement of law at p.7 where the Court states:

“There is no requirement that at the time of issuing a Notice to Quit, the subsequent applicants must then be noted on the title as the registered proprietors.”

It is enough to show that at the time of the issuance of the Notice to quit, the Applicants/Plaintiffs, were already seized of the estate of the deceased.

The facts before this Court are conclusively in favour of the Plaintiffs. Nothing the Defendant has submitted is sufficient to satisfy this Court that he is entitled to remain on the property.

Order is hereby made for immediate vacant possession of the property.

Costs of $100 against the Defendant to be paid within 14 days.

F. Jitoko
JUDGE

At Labasa