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Khan v Diluilui [2012] FJHC 1292; HBC93.2012 (20 August 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. 93 of 2012

BETWEEN:

SHEREENA KHAN of Sydney, Australia, Economist, as the Executrix and Trustees of the Estate of Khalil Khan.
PLAINTIFF

AND:

SINIKULA DILUILUI of Kuku, Nausori, School Teacher.
1ST DEFENDANT

AND:

CAMARI TUINAI also known as CAMARI MAIYACATA of Kuku, Nausori, School Teacher.
2ND DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSEL: Mr. Pillay W.S for the Plaintiff
Mr. Daveta V.M. for the Defendant

Date of Hearing: 13th August, 2012
Date of Decision: 20th August, 2012

DECISION

A. INTRODUCTION

1. The Plaintiff is seeking the eviction of the tenant. The Defendant admit the title of the Plaintiff and also admit that she is a tenant of the Defendant but in the affidavit in opposition alleges certain misdeeds committed by the Plaintiff and or her agents. These allegations are numerous and cannot be investigated in an action for eviction. The scope of the Section 169 of Land Transfer Act is limited and cannot be extended to deal with all the issues and disputes between the Plaintiff and Defendant and if the Defendant is not happy with the treatment she received from the landlord she is free to leave the premises and take appropriate legal action against any such perpetrator if there is any violation of her rights.
   

B. ANALYSIS

2. In the case of Morris Hedstrom Limited –v- Liaquat Ali CA No: 153/87, the Supreme Court said that:-
   

"Under Section 172 the person summonsed may show cause why he refused to give possession of the land if he proves to the satisfaction of the Judge a right to possession or can establish an arguable defence the application will be dismissed with costs in his favour. The Defendants must show on affidavit evidence some right to possession which would preclude the granting of an order for possession under Section 169 procedure. That is not to say that final or incontrovertible proof of a right to remain in possession must be adduced. What is required is that some tangible evidence establishing a right or supporting an arguable case for such a right must be adduced."

3. The Defendant has filed an affidavit in opposition alleging various misdeeds against the Plaintiff and or her agents. The Defendant admit the Plaintiff's right to bring this action as the first paragraph in the affidavit in support is admitted by the Defendant in their affidavit in opposition.
   
4. Once the Plaintiff has established her right to the property since the Plaintiff claims that the Defendant is a tenant the legal quit notice to vacate the premises has to be proved. The Plaintiff has annexed the said notice to quit and it granted one month time period for the vacation of the premises. In the absence of any valid written tenancy contract at the time of the said quit notice the tenancy is considered as monthly tenancy and the said quit notice annexed as 'D' to the affidavit in support.
   
5. The issues raised in the affidavit in opposition does not establish a right to possession of the property, but only allegations of certain misdeeds committed by the Plaintiff and or her agents were being made. If those allegations are true that cannot be considered in an application for eviction in terms of Section 172 of the Land Transfer Act, establishing any right to possession of the premises and the Defendant has to demonstrate a right to remain possession of the premises.
   
6. The alleged misdeeds of the landlord and or her agents cannot be a reason to remain in possession of the premises and if the allegations are true those has to be dealt in a separately in an appropriate manner, but even if the said allegations are true, no right to possession is established by the Defendant.
   

C. FINAL ORDERS

1. The Plaintiff's application for vacant possession of the property described in the originating summons granted.
   
2. No cost.
   

Dated at Suva this 20th day of August, 2012.

Master Deepthi Amaratunga
High Court, Suva