IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. 162 of 2010

BETWEEN

SEO PRASAD (father’s name Matabadal) of Oloolo, Sigatoka,
Landlord
Plaintiff

AND

MIRIAMMA aka MIRIAMMA PILLAI
(father’s name unknown to the plaintiff) of Sigatoka Town,
Sigatoka, Businessperson.
Defendant

Before : Master Anare Tuilevuka
Solicitors : Messrs Koya & Company for the Plaintiff
Messrs Pillay Naidu & Associates for the Defendant

Date of Hearing : 18th January 2011
Date of Ruling : 02nd March 2011

RULING

[1].	Before me is the Summons for Ejectment filed by the plaintiff (“Prasad”)on the 17th of August 2010 pursuant to section 169 of the Lands Transfer Act (Cap 131) seeking the following orders:

That the defendant do show cause why he should not give up immediate vacant possession to the plaintiff of all the land comprised in Certificate of Title No. 10220 being Lot 52 on DP 2456 containing an area of 12 perches in the District of Nadro+ga and costs of this application.

[2].	Section 169 states as follows:

169. The following persons may summon any person in possession of land to appear before a judge in chambers to show cause why the person summoned should not give up possession to the applicant:-

(a)	The last registered proprietor of the land’
(b)	……………………….
(c)	The lessor against a lessee or tenant where a legal notice to quit had been given or the term of the lease has expired.”

[3].	Prasad is the last registered proprietor of CT 10220 being Lot 52 on DP 2456 situated at Sigatoka town (“property”). The property was registered to him on the 18th of December 2009 when he purchased it. It appears that the defendant (“Pillai”) had been a tenant of Prasad’s predecessor in title. It is not clear though what sort of tenancy arrangement existed before Prasad. It is common ground though that Pillai was a sitting tenant when Prasad acquired the property.

[4].	Prasad says that when he acquired the property, he allowed Pillai to continue in occupation as a monthly tenant on the same rental of $350 that Pillai had been paying hitherto. 

[5].	However – Prasad now wants to renovate the property. If the property is not renovated soon, he says it will deteriorate further and will cost him more. That is all he says on the matter. There is no documentation annexed to his affidavit pointing towards the need for the alleged renovation or what exactly needs renovation etc (e.g a requisition letter from the local government inspectors or from an OHS Officer of the Labour Department). 

[6].	In any event – it was on the basis of a need for renovation that - on 11th March 2010, Prasad’s solicitors issued a notice on Pillai. 

[7].	Pillai’s solicitors responded by letter dated 14th May 2010 a copy of which is annexed to Prasad’s affidavit.

[8].	The reply states as follows:

Date: 14th May, 2010

Messrs Koyas
Barristers and Solicitors
PO Box 354
NADI

Dear Sirs

RE: Our Client: Miriamma aka Miriamma Pillai
Your Client:	Seo Prasad (s/o Matabadal)
Notice to Vacate

We act as Solicitors for Miriamma aka Miriamma Pillai who has handed your letter dated 11th March 2010 with instructions to reply as follows:

(a)	It is admitted that your clients are the registered proprietors
(b)	It is denied that our client is a monthly tenant as she has a lease (tenancy agreement) for a fixed term.
(c)	Clauses 3 and 4 are denied

Therefore the notice to vacate does not comply with the tenancy agreement as the same does not contain an exit clause.

We trust that this clarifies matters.

Yours faithfully
PILLAI NAIDU & ASSOCIATES

[9].	Pillai’s affidavit in opposition sworn on the 10th of November 2010 and filed herein deposes to facts which appear to bear out the contents of the above letter. She says as follows:

(i)	before Prasad purchased the property - he had negotiated with Pillai about rental payments and matters pertaining to the lease of the property.

(ii)	Prasad had appointed one Narendra Kumar as his agent to collect all rentals and to deal with all tenants (Pillai annexes to her affidavit a copy of an authority dated 5th October 2001 purportedly by Prasad to Narendra Kumar).

(iii)	through Narendra Kumar – Prasad then entered into a fixed-term tenancy agreement with Pillai. The term of the tenancy agreement was 5 years from 6th day of October 2009 at a monthly rental of $350 for the 1st two years, $450 for the next two years and $500 for the final year. 

(iv)	the property is in good condition. There is no need for renovation.

(v)	what Prasad is actually doing is – he is trying to use the excuse of wishing to renovate to obtain vacant possession and to circumvent the tenancy agreement.

(vi)	a copy of the tenancy agreement purportedly signed between Pillai and Prasad is annexed to Pillai’s affidavit. Both signatures were witnessed by the Justice of the Peace Mr. Sunil Ram. 

[10].	I have traversed the document annexed to Pillai’s affidavit which purports to be the fixed-term lease agreement between Prasad and Pillai. The following I observe:

Description of Parties	:	Shiu Prasad and Narendra Prasad as landlord.
Mariamma Naidu as tenant
	
Description of Premises	:	Business premises on the ground floor of the building built on Lot 48 DP 2456 situated in Tapooo’s line Valley Road, Sigatoka Town.
	
Term	:	five-year lease term commencing from 6th October 2009 till 6th October 2014
	
Rental	:	for the first two years of $350 and thereafter $450 and then $500 for the final year. 

Date of Agreement - 06th day of October 2009 (but unclear as to when executed. The date appears to have been tampered with to indicate a much later date/year).

[11].	The document contains all the usual tenant and landlord covenants (e.g. to pay rents and outgoings, not to assign or sublet without the consent of the landlord, to keep in good order and condition, to comply with fire and safety regulations, not to use or permit for any other purpose except for restaurant purpose, not to interfere with the occupation by the tenant, to pay town rates etc). There is also a covenant by Prasad to give Pillai a first option of renewal of tenancy upon expiry of the term of the lease. 

[12].	Prasad’s affidavit in response sworn on 7th December 2010 categorically denies that he ever authorized Kumar to collect any rent from the premises. He says he only authorized Kumar to collect rent in respect of CT No. 10108. At no time did he ever authorized Kumar to collect rent in respect of CT 10220. He says that CT 10220 was transferred to him in December 2009 but the agreement is dated October 2009. The authority is not applicable to CT 10220. He says that the tenancy agreement is invalid as he never authorized Kumar to enter into it. He says that the date endorsed by the witnessing officer has been change or forged. He maintains that the said property needs renovation. 

[13].	The issues in this case are:

(i)	am I dealing with a monthly tenancy – in which case the Notice to Quit and the subsequent section 169 proceedings would be appropriate? OR

(ii)	was Pillai occupying the property pursuant to a valid 5-year-fixed-term commercial lease – in which case – the section 169 proceedings is – prima facie – inappropriate?

(iii)	following from the above - assuming that I was to find that what in fact/law existed was a 5-year fixed-term commercial lease – can it be determined by a Notice to Quit on the ground that the premises in question needs to be renovated?

[17].	Generally, a fixed-term lease cannot be determined by a notice to quit unless there is a clause in the lease to that effect. The following extract from the Fiji Supreme Court decision in Central Rentals Ltd v Patton & Storck Ltd [2008] FJSC 30; CBV004.2008 (17 October 2008) appears to support this position. 

11 Fatiaki J did not consider the effect of serving a summons under s 169 and did not refer to the terms of the section which provides:

……………………………………………………………

12 The section is only available to enforce a forfeiture for non payment of rent. A lease for a fixed term cannot be determined by a notice to quit. Proceedings to enforce a forfeiture for breach of any other covenant cannot be bought under this section, and the dictum of the Court of Appeal in its 1996 decision cannot prevail against the clear words of the section. As Williams J said of a similar section in Town v Stevens (1899) 17 NZLR 828, 831:"an action for ejectment would be equivalent to re-entry; but no action of ejectment ... can be brought under this section". The Court of Appeal in 2008 followed this decision in holding, correctly in our view, which an action for ejectment could not be brought under s 169 except for non payment of rent.

[18].	In this case, whether the purported 5-year lease agreement is valid turns on a lot of issues. Principal amongst these is whether or not Kumar had authority to sign the document on behalf of Prasad. 

[19].	It is hard to determine that issue on the evidence before me. I note that Prasad denies having given a power of attorney to Kumar – let alone any authority whatsoever to enter into that purported agreement with Pillai. However – I wonder what Kumar would say on the matter. The agreement that Pillai annexes to her affidavit mentions a power of attorney given by Shiu Prasad. 

[20].	Frankly –the above questions cannot be determined summarily without the evidence of Kumar. Accordingly – I am reluctant to make any finding on whether or not Pillai is a monthly tenant or a tenant pursuant to a fixed-term lease agreement. 

[21].	Neither counsel has raised any issue on the glaring absence of any stamp duty paid on the purported agreement. Perhaps they are of the view that it is irrelevant as a matter of evidence. Notably - Mr. Koya highlights issues about the tampering of the date on the purported agreement. I agree the date appears to have been tampered with. But – again - I am reluctant to resolve these issues summarily now.

[22].	There are a lot of triable issues raised by the affidavits. 

[23].	These are best dealt with by way of a writ action. I will not grant order in terms of the application. 

[24].	Instead, I make the following directions pursuant to section 172 of the Land Transfer Act (Cap 131) which empowers the court to make any order or impose any terms he may think fit where the defendant has established some prima facie right to possession – and also pursuant to Order 28 Rule 9(1) of the High Court Rules (1988) .

DIRECTIONS

(i)	these proceedings are henceforth to continue as if begun by writ.

(ii)	affidavits filed so far are to stand as pleadings with liberty to the parties as follows to add thereto:

(a)	if the plaintiff wishes to add thereto his affidavit – he must do so in 21 days (i.e by 23rd of March 2011).

(b)	14 days thereafter to the defendant to file his affidavit in reply and adding to his original affidavits (i.e by 06th of April 2011).

(c)	7 days thereafter to the plaintiff for any reply (i.e. by 13th of April 2011).
This case is adjourned to 14th of April 2011 for mention. Costs in the cause.

Anare Tuilevuka
Master

At Lautoka
11th of February 2011.