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Kumar v Segran [2011] FJHC 815; HBC340.2009 (23 December 2011)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

CASE NUMBER: HBC 340 of 2009

BETWEEN:

DHIRESH KUMAR
PLAINTIFF

AND:

CHANDAR SEGRAN
DEFENDANT

Appearances: Mr. R. Naidu for the plaintiff.
Mr. J. Rabuku for the defendant.

Date/Place of Judgment: Friday, 23rd December, 2011 at Suva.
Judgment of: The Hon. Madam Justice Anjala Wati.

_____________________________

JUDGMENT

Catchwords:
SETTING ASIDE ORDER FOR VACANT POSSESSION GRANTED PURSUANT TO S.169 OF LAND TRANSFER ACT.

Legislation:
Land Transfer Act, Cap. 131.
Indemnity, Guarantee and Bailment Act, Cap.232.

Cases Referred To:
Grimshaw v. Dunbar [1953] 1 All ER 350

_____________________________

The Cause

1. The defendant has filed an application to set aside an order for vacant possession made on the 22nd day of January, 2010, when the defendant failed to appear in Court and show cause why such an order should not be made against him. A further order for cost was granted on summary assessment in the sum of $550.
   

Grounds in Support

2. The grounds upon which the setting aside is made is contained in the affidavit of the defendant who deposed that he was served with the application on the 5th day of January 2010 which was returnable for 22nd January 2009. The defendant contends that upon perusal of the documents with his wife and daughter, who attends the Fiji Institute of Technology, it was noticed that the date to appear in Court was 22nd January 2009 at 8.00am. They therefore thought that the case had to do with a dispute which the defendant had with the landlord in 2009. In 2009, his lawyer had commenced legal proceedings against the landlord for interfering with his tenancy. The matter was unresolved.
   
3. The defendant says that sometimes in 2009, he had proposed to Mr. Sugrim Prasad, the landlord's father to purchase the property. Mr. Sugrim had agreed that he could purchase the property.
   
4. In early 2009, Mr. Prasad gave the defendant a copy of the valuation of the property and informed him that he would sell the same for $300,000.
   
5. After 5th January, 2010, when he talked to Mr. Prasad about the sale arrangements, he told the defendant to put the request in writing. He wrote the letter to Mr. Prasad on 18th January, 2010 outlining his willingness to purchase the property. He also requested in his letter a time frame of 6 months to arrange for the finances. When he raised with Mr. Prasad the issue of the documents that had just been served on him, Mr. Prasad told him not to worry about it, as he had informed his lawyers to hold on to the Court proceedings. He was shocked to have been served with an order on the 08th day of February, 2010 which required him to vacate the property.
   
6. After the discussion, the defendant says he had with Mr. Prasad, he had commenced investments by poultry farming, and to date, he had on the property, 106 chicks, 10 ducks, 8 roosters and 12 layers (hens).
   

Grounds in Opposition

7. The plaintiff's application was supported by two affidavits. The plaintiff stated in his affidavit that on 12th April, 2007, the defendant entered into an agreement with his father Mr. Sugrim Prasad to rent the house. On 28th February, 2008 and 31st July 2008, his father issued a letter to the defendant requesting him to vacate the property. On 24th September, 2008 a letter demanding vacant possession was issued by Naidu Law. The letter demanded vacant possession on or before 31st October, 2008. The said letter was served on the defendant on 1st October, 2008.
   
8. On 16th December, 2008, the defendant instituted Court proceedings against Sugrim Prasad, Narayan Sami, Ramend Lal and him, in Nausori Magistrates Court. The defendant had also obtained an ex-parte order restraining them from evicting the defendant from the said property.
   
9. The Nausori Court action was listed for trial on 26th June 2009. The defendant and his solicitor failed to appear in Court on that day, as a result of which, the action was struck out and the ex-parte orders dissolved.
   
10. On 29th June 2009, the plaintiff's solicitors again issued against the defendant another notice to vacate, demanding the defendant to vacate the property on or before 31st July, 2009. The notice was served on the defendant on 30th June, 2009. The defendant refused to vacate the property and so an action for vacant possession was filed.
    
11. By the time the defendant received the application for vacant possession, the Nausori Court proceeding was terminated. The defendant should have contacted the Registry or the solicitors if he was confused.
    
12. A writ of possession has been executed.
    
13. The plaintiff stated that he would not comment on the livestock of the defendant. The High Court sheriff had removed them. However, the plaintiff says that he was told by one of the neighbours' that the defendant had about 12 to 15 chicks.
    
14. The defendant had shown an interest to purchase the property but the property is under renovation. Once renovations are done, the property would be put on for sale in the market. The defendant can always make an offer.
    
15. The plaintiff says he will be seriously prejudiced if the order for vacant possession is set aside because:-
    
    • (a) Too much has taken place to be undone as he has now taken possession of the said property;
      
    • (b) The defendant has damaged the bedroom door locks, removed the knobs of the kitchen sink tap, removed the mosquito screen netting from the windows of two master bedrooms and used it for the chicken shed, removed all 86 bulbs from the batten holders surrounding the house and damaged its electrical wiring and removed four two feet tube lights together with its fitting;
      
    • (c) He specifically travelled from Auckland, New Zealand to Fiji after the order for vacant possession was made, in order to carry out renovation and maintenance work on the said property. He has painted the exterior and interior of the house and is currently repairing all the damage that the defendant caused to the property;
      
    • (d) He has so far incurred approximately $6,000.00 (six thousand dollars) in legal fees which includes fees for this matter as well as for the Nausori Magistrates Court proceedings. If the defendant is allowed to proceed further, this will put him to further costs;
      
    • (e) He will be seriously prejudiced if the defendant is allowed, even at this late stage, to pursue remedies which would now be a nugatory exercise;
      
    • (f) The defendant has not paid the costs awarded to him by the Nausori Magistrates Court on 26 June 2009 and the costs awarded to him on 22 January 2010 in the current proceedings.
      
16. The plaintiff further stated that:
    
    • (a) The tenancy agreement with the defendant was for a period of 12 months effective from 1 May 2007 which ended on 30 April 2008. The tenancy was not renewed after 30 April 2008;
      
    • (b) The defendant failed to pay his rent on time. The defendant also did not pay his bond deposit as required pursuant to clause 4 of the tenancy agreement dated 12 April 2007. As at June 2009, the defendant was in arrears of rent in the sum of $3,300.00 (three thousand three hundred dollars) and the arrears has continued to accumulate until 17 February 2010.
      
17. The plaintiff's father, Sugrim Prasad, deposed in his affidavit that sometimes in November 2009, the defendant said to him that he wanted to purchase the property. He said that the property would be sold if the defendant paid $300,000. The defendant said that he would arrange finance. During the discussions, he gave the defendant one month time to arrange his finance. He gave a copy of the valuation to the defendant and if the defendant had come up with the finances, he would have sold the property.
    
18. The plaintiff's father further deposed that he admitted that he told the defendant to put his request for purchase in writing. On 18th January 2010, the defendant went to see him in his office. The defendant gave the letter to him. He took the letter and rang his solicitors in presence of the defendant. He advised his lawyer of the said letter and his lawyer told him to advise the defendant that no further time would be given to him and that he will proceed to obtain the order for vacant possession.
    
19. The plaintiff's father also stated that he does not know of the quantity of stock the defendant claims to have on the said property. There is a chicken shed on the said property which was built by the plaintiff for his personal use prior to the defendant's occupation of the said property. The size of the shed is 3m x 2m and it cannot accommodate the quantity of livestock the defendant alleges to have. The defendant did poultry farming by his choice. He did not make any suggestions at any time.
    

The Submissions

20. Mr. Rabuku repeated the contents of his client's affidavit and stated that the summons was not correctly dated. If it was, his client would have come to court and put all material facts pertaining to the sale of the property and the defendant's arrangement of finance pertaining to the sale. The court would not have made any orders for vacant possession then.
    
21. Mr. R. Naidu submitted that the defendant had intentionally and deliberately failed to appear in court having noticed that the summons had a returnable date of 2009. Until date, no cause has been shown why an order for vacant possession should not be made. The plaintiff would be seriously prejudiced as stated in his affidavit. The plaintiff has taken possession of the property and the application to set aside would be futile. The defendant has not sought any mandatory orders seeking to put him back in possession, so any order to set aside would only be academic.
    
22. Mr. Rabuku further submitted in reply that his client will not go back to the property but the setting aside will enable the defendant to seek damages as the defendant was ordered to give vacant possession without being served a proper summons and the plaintiff got an order without disclosing material facts of the sale arrangements.
    

The Law and Analysis

23. Mr Naidu has pointed to me a very relevant case of Grimshaw v. Dunbar [1953] 1 All ER 350. In this case it was held that an action for setting aside of an order for vacant possession by a tenant ought to be considered on the following factors:-
    
    • (a) The reason for the tenants failure to appear when the case was heard;
      
    • (b) Whether there had been undue delay in making the application so as to prejudice the landlord;
      
    • (c) Whether the landlord would be prejudiced by an order for new trial so as to render it inequitable to permit the case to be re-opened; and
      
    • (d) Whether the tenant's case was manifestly insupportable.
      
24. I propose to follow the guidelines set by Grimshaw's case.
    
25. Why did the defendant fail to appear in Court to show cause? The defendant says that he was given a date to come to Court in 2009, when the matter was called in Court on 22nd January 2010 and an order made then. He says that due to the wrong date, he confused this case with that of another that he had with his landlord.
    
26. The case that the defendant is referring to had been struck off on the 26th day of June 2009 and that too was in Nausori Magistrates Court. The current case clearly indicated that it was a High Court case and that it sought an order against the defendant. There were so many other clear indications in the application which indicates to me that the defendant's contention of being confused is just an after-thought. He chose to be confused to find a defence to his non-appearance in Court.
    
27. Further, the defendant himself deposed that when he wrote a letter to Mr. Sugrim Prasad, regarding purchase of the property, he enquired from Mr. Prasad as to what would happen to the case and Mr. Prasad replied that it would be put on hold. If the defendant thought the current proceedings to be that of the action that he filed, there was no need for him to enquire form Mr. Sugrim Prasad to put the case on hold as there was nothing in his understanding to be put on hold. The defendant is dishonest in his defence for his failure to attend Court. His excuse is baseless and unsatisfactory. This factor does not favour him at all.
    
28. The application for setting aside was made on 19th February 2010, some 28 days after the order was granted and after the writ of possession was successfully executed. The landlord has taken possession of the property and on that measurement alone, the application for setting aside has been delayed, to cause substantial prejudice to the plaintiff if the order was to be disturbed and I also hold that the plaintiff will suffer prejudice in the terms he has deposed.
    
29. The plaintiff cannot be forced to have a tenant who indisputably had been in arrears of rent and not a promising tenant. The second factor again does not favour the defendant.
    
30. On the third factor of prejudice, I have already held that the plaintiff would definitely be prejudiced. The defendant will not be prejudiced as he cannot exercise his rights on someone else's property for life, under the disguise of being a capable buyer.
    
31. The last and the final factor is the assessment of the defendant's case. The defendant states that he was in the process of collecting finances to buy the property and that he made livestock investment on the property.
    
32. Any verbal arrangements for sale and purchase cannot be valid and sufficient to prevent an order for vacant possession. For an action of sale and purchase to be effective, there has to be a note or memorandum in writing signed by the plaintiff. There is none that has been furnished to this Court. The defendant did write a note expressing his interest to buy the property but that is not sufficient to meet the requirements of s. 59(d) of the Indemnity, Guarantee and Bailment Ac, Cap. 232.
    
33. On the aspect of the defendant spending monies on livestock, there is no evidence before me that the plaintiff had permitted or acknowledged the investment. The plaintiffs notice to vacate gives an indication that he was not wanted on the property as a tenant at least as he was not promising. This should have been sufficient to indicate to the defendant to make any unwise investment on the property. If he did, he did so at his peril. Moreover, the expenditure is not on the property. The expenditure is on livestock which the defendant can easily take away with him and which he has done so.
    
34. The final factor also does not favour the defendant. Even if I was possessed with all these materials at the time the application was heard, I would have still granted the orders for vacant possession. The defendant's tenancy has expired and as such he has no rights to occupy the property.
    
35. There are no merits in setting aside the application for vacant possession.
    

Costs

36. The defendant has put the plaintiff to great expenses of having to face legal proceedings, even after an order was made for vacant possession. These costs arose as a result of the defendant's vengeance to bring the plaintiff to Court. The plaintiff must be paid costs of this proceeding too.
    

Final Orders

37. The application for setting aside is refused.
    
38. There shall be costs in favour of the plaintiff in the sum of $550.00
    
39. Orders accordingly.
    

Anjala Wati
Judge
23.12.2011

To:

1. Mr R. Naidu, counsel for the plaintiff.
   
2. Mr. J. Rabuku, counsel for the defendant.
   
3. File: Suva HBC 340 of 2009.