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Public Rental Board v Devi [2022] FJHC 78; HBC56.2021 (25 February 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. 56 of 2021

IN THE MATTER of Land Transfer Act 1971 and under Section 169 of the Land Transfer Act 1971

BETWEEN: PUBLIC RENTAL BOARD a body corporate constituted under the provisions of the Housing Act and having its Head Office at Housing Authority Building, Saqa Street, Valelevu, Nasinu

PLAINTIFF

AND: MANJULA DEVI aka MANJULA TARAI aka MANUJA DEVI TARAI of Black 2 Flat 3, Kalabu Rental Estate, Uci Place, Kalabu, Suva.

DEFENDANT

Counsel : Plaintiff: Ms. Lal P

: Defendant: In Person
Hearing Date : 28.01.2022
Date of Judgment : 25.02.2022

Catch words
Public Rental Board- tenant of Public Rental Estate- Section 15, 31, 32 and 33 of Housing Act 1955- Sections 169 and 172 of Land Transfer Act 1971- Bill of Rights- Right to Housing- Freedom from Arbitrary Eviction- Sections 6, 35 and 39 of Constitution of the Republic of Fiji.

JUDGMENT

INTRODUCTION

1. Plaintiff is a ‘body corporate’ in terms of Section 31 of Housing Act 1955. Plaintiff is a public body, whose members are appointed by executive of state, and its powers and functions inter alia includes renting and or managing of Public Rental Estate. Defendant is a tenant of Plaintiff for a residential premises Block 2 Flat 3 at Kalabu, Maba Place (the Premises) in terms of Tenancy Agreement entered on 1.5.2018, for a period with a provision for extension. Defendant was offered another premises on an allegation of nuisance. This allegation of nuisance was denied. She had refused relocation. Relocation is allowed at Plaintiff’s discretion under terms of Tenancy Agreement. Defendant had refused relocation, considering safety of her children. Plaintiff had purportedly terminated Tenancy Agreement on 6.10.2020 for refusal to relocate and had also given thirty day notice to quit on 9.11.2020. Plaintiff can ‘remove and replace’ Defendant ‘to any other premises should the Board see the need to do so’. Plaintiff being a public body is bound by Bill of Rights contained in Constitution of The Republic of Fiji. Section 35 read with Section 39 of the Constitution of The Republic of Fiji guarantees, Right to Housing and Freedom from Arbitrary Eviction. Bill of Rights contained in the Constitution of The Republic of Fiji, read with Section 172 of Land Transfer Act 1971 has shown why Defendant ‘refuses to give possession of’ the premises. Plaintiff’s reason for eviction of Defendant based on disputed facts. Hence summons for summary possession refused.

FACTS

2. Plaintiff is public body corporate, appointed by executive of government, and its function includes managing Public Rental Estates, including collection of rentals.
   
3. Plaintiff is registered lessee of State Lease No 297889 annexed as A to the affidavit in support. On this land there is Public Rental Estate and Defendant became a tenant of Plaintiff in terms of Tenancy Agreement(annexed as B to affidavit in support)
   
4. This action was institution in terms of Section 169 of Land Transfer Act 1971 on 23.2.2021 to evict Defendant form the Premises after purported termination of Tenancy Agreement.
   
5. This matter was dealt by Master and it was referred to me 4.1.2022 and hearing was held on 28.1.2022.
   
6. Plaintiff was represented by a legal practitioner and Defendant appeared in person at hearing. Both parties have filed affidavits, and written submissions.
   
7. Plaintiff had decided to relocate Defendant due to alleged nuisance or disturbance, of Defendant and another tenant by its letter 25.9.2020.
   
8. Defendant had objected to that relocation and by letter dated 6.10.2020, Plaintiff had terminated Tenancy Agreement and had given thirty days to vacate the premises.
9. The above letter also warned that legal action would be taken if it was not complied with. There were further notices to quit the premises issued 9.11.2020 and 16.12.2020.
   
10. Plaintiff instituted this action for eviction of Defendant from the rented premises on the basis of termination of Tenancy Agreement for refusal to relocate.
    
11. Defendant had filed an affidavit in opposition to Plaintiff’s application for eviction , and state;
    
    1. Denied that she created any dispute with neighbours so as to make it nuisance.
    2. She was not shown any complaints and no opportunity to reply.
    100. Had maintained peaceful occupation without any written complaints to any authority including Police.
    4. She had four children and they were all looked after by neighbours and had very cordial relationship with them. They help her as single parent to raise four young children
    5. Works at CWM hospital with four children. Needs to isolate often, hence her children’s safety is paramount and this requirement is met in the premises.
    6. Never had arrear of rent and paid her utilities and had even overpaid.
    7. She will not be able to find suitable and affordable place to live with children if evicted.
    8. No effort to reconcile, if there was any complaint.
    9. She was a good tenant and maintained her flat beautifully.
    10. Plaintiff failed to evict tenants who were involve in a severe breach of peace where even Police were involved in ‘Nabua Brawl’ for over two years, despite they were charged by Police.
    11. Claims discrimination for alleged verbal complaint regarding her.
    50. Children attend school for over four years at one school and this will affect in relocation.
    13. Did not agree to relocate due to area of suggested relocation, being not suitable as there were violence, prostitution, robbery, drug peddling prevalent.

ANALYSIS

12. Plaintiff had filed this action seeking vacant possession from the Premises rented by Plaintiff in terms of Tenancy Agreement.
    
13. Plaintiff is incorporated in terms of Section 31 of Housing Act 1955 and appointment of personnel to its Board is by executive of the state.
    
14. Accordingly Plaintiff had entered in to Tenancy Agreement with Defendant on concessionary terms regarding the Premises which is a Public Rental Estate.
15. In terms of the Tenancy Agreement, the state will provide subsidy for rentals after assessment of salaries and wages to Plaintiff. This shows that tenants of Plaintiff were being granted rental reductions, depending on their salaries.
    
16. So the tenants of such estate, are not treated purely on commercial terms. In other words Plaintiff is providing a public service through rental at affordable prices depending on income of the tenants.
    
17. Defendant had qualified to be a tenant of Plaintiff, on such concessionary terms.
    
18. Clause 2 of Tenancy Agreement stated

“The Tenancy shall be on weekly tenancy basis and either party may terminate the tenancy by giving one week’s termination notice in writing, such notice expressed to expire on Friday in any week. Subject to the terms and conditions therein contained and a the absolute discretion of the Board, this agreement shall be subject to Renewal for further period of three (3) years upon the existing terms and conditions or upon such new terms and conditions as to the stipulated by the Board at its absolute discretion.”

19. So Defendant had legitimate expectation for renewal of her Tenancy Agreement for at least another three years, upon the fulfilment of conditions therein.
    
20. Plaintiff had terminated contract for alleged nuisance caused by Defendant. There were no written complaints including any to Police or any other authority. According to Plaintiff there were number of verbal complaints, regarding Defendant fighting with a tenant.
    
21. According to affidavit of reply filed by Plaintiff, at paragraph 6 it stated Plaintiff stated it had attempted to resolve the issues. There were no documentary proof of that and since this evidence was in their reply to Defendant’s affidavit in opposition there was no response from Defendant. These facts are disputed between parties.
    
22. The decision to relocate was taken by Plaintiff with consultation of Ministry of Housing. Again there was no evidence to such a decision being taken other than statement in said affidavit. These facts are necessary to prove that eviction notice issued for refusal to relocate was not issued arbitrarily.
    
23. Plaintiff is a statutory body bound by rules of natural justice and decisions of it should also be reasonable. According to terms of the Tenancy Agreement, Defendant is entitled to extension of it on similar terms and conditions.
    
24. As Tenancy Agreement was prematurely terminated Defendant’s right to be occupied under concessionary rental and her legitimate expectation under Bill of Rights contained in Constitution of Republic of Fiji are discussed below.
    
25. Plaintiff as a public body under executive arm of the government is also bound to comply with Bill of Rights contained in the Constitution of Republic of Fiji in terms of section 6 of the Constitution of Fiji which states,

‘6.—(1) This Chapter binds the legislative, executive and judicial branches of government at all levels, and every person performing the functions of any public office.

(2) The State and every person holding public office must respect, protect, promote and fulfil the rights and freedoms recognised in this Chapter.

(3) A provision of this Chapter binds a natural or legal person, taking into account—

(a) the nature of the right or freedom recognised in that provision; and

(b) the nature of any restraint or duty imposed by that provision.

(4) A legal person has the rights and freedoms recognised in this Chapter, to the extent required by the nature of the right or freedom, and the nature of the particular legal person.

(5) The rights and freedoms set out in this Chapter apply according to their tenor and may be limited by—

(a) limitations expressly prescribed, authorised or permitted (whether by or under a written law) in relation to a particular right or freedom in this Chapter;

(b) limitations prescribed or set out in, or authorised or permitted by, other provisions of this Constitution; or

(c) limitations which are not expressly set out or authorised (whether by or under a written law) in relation to a particular right or freedom in this Chapter, but which are necessary and are prescribed by a law or provided under a law or authorised or permitted by a law or by actions taken under the authority of a law.

(6) Subject to the provisions of this Constitution, this Chapter applies to all laws in force at the commencement of this Constitution.

(7) Subject to the provisions of this Constitution, laws made, and administrative and judicial actions taken, after the commencement of this Constitution, are subject to the provisions of this Chapter.

(8) To the extent that it is capable of doing so, this Chapter extends to things done or actions taken outside Fiji.”(emphasis added)

26. Land Transfer Act 1971, was in force when present Constitution of Republic of Fiji commenced, but Bill of Rights applied to it as well as to Housing Act 1955.
    
27. Plaintiff being Public Rental Board, whose members are appointed by the executive arm of the state, is bound by Bill of Rights. So this application for eviction filed in terms of Section 169 of Land Transfer Act 1971 and the right of such a tenant of Public Rental Estate, in terms of section 172 of Land Transfer Act 1971 needs to be interpreted in terms Bill of Rights in the Constitution of the Republic of Fiji. This is due to special nature of Public Rental Estate and its tenants and or concessionary terms that are applicable for such tenants of public body bound by Section 6 of the Constitution of the Republic of Fiji.
    
28. The functions and powers of Plaintiff are found in Section 32 of Housing Act 1955. Accordingly Plaintiff was exercising its powers to evict Defendant. The eviction should be justified under Bill of Rights contained in Constitution of the Republic of Fiji.
    
29. Section 35 Constitution of Republic of Fiji also recognizes Right to Housing and accordingly Defendant had obtained this premises, presumably on satisfaction of some special conditions to qualify for such concessionary terms contained in Tenancy Agreement.
    
30. Section 35 of the Constitution of the Republic of Fiji states

“Right to housing and sanitation

35.—(1) The State must take reasonable measures within its available resources to achieve the progressive realisation of the right of every person to accessible and adequate housing and sanitation.”

31. Accordingly, depending on availability of resources of state, Public Rental Estate was vested with Plaintiff. The Tenancy Agreement in terms of Housing Act 1955, was entered between Plaintiff and Defendant, regarding the Premises in Public Rental Estate.
    
32. Section 39 of Constitution of the Republic of Fiji imposes a duty on Plaintiff to act reasonably in eviction proceedings. So Plaintiff is required, not only to follow rules of natural justice, but also have to consider hardships and circumstances of Defendant’s before relocation in terms of Tenancy Agreement.
    
33. Section 39 of Constitution binds Plaintiff to provisions found in Bill of Rights, in terms of Section 6 of Constitution of Republic of Fiji. Accordingly Plaintiff cannot arbitrarily evict a tenant. It needs to be done in reasonable manner following rules of natural justice.
    
34. Section 39 of Constitution of Republic of Fiji states,

“Freedom from arbitrary evictions

39.—(1) Every person has the right to freedom from arbitrary evictions from his or her home or to have his or her home demolished, without an order of a court made after considering all the relevant circumstances.

(2) No law may permit arbitrary evictions.”

35. Sections 169, and 172 of Land Transfer Act 1971 are general provision of law to evict a person who is in occupation of and land or a premises without a reasonable ground to stay. When such provisions are implemented by Public Rent Board (Plaintiff) regarding a Public Rental Estate created in terms of Section 33 of Housing Act 1955, Plaintiff is obliged to comply Section 39 of the Constitution of Republic of Fiji, in terms of section 6 of Constitution of Republic of Fiji. This is a requirement in order to safeguard Bill of Rights contained in the Constitution of the Republic of Fiji.
    
36. Section 169 of Land Transfer Act 1971 states,
    

“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) a lessor with power to re-enter where the lessee or tenant is in arrear for such peri may be provided in the lease and, in the absence of any such provision therein, when then the lessee or tenant is in arrear for onth, whether there be or b or be not sufficient distress found on the premises to countervail such rent and whether or not any previous demand has been made for the rent;

(c) a r against a lessee or tenr tenant where a legal notice to quit has been given or the term of the lease has expired.”

37. Section 169 (a) and (b) of Land Transfer Act 1971, has no application to this case. Plaintiff is relying on Section 169(c) of Land Transfer Act 1971, on the basis of terminating the tenancy and a legal notice to quit the premises given.
    
38. The legality of notice to quit Defendant from the premises depend on the exercise of its discretion to relocate Defendant to another premises at different location. These are disputed facts.
    
39. Though the Tenancy Agreement had three year time period it also expressly acknowledges an extension of another three years. Hence such an extension was not considered due to premature termination of it by Plaintiff.
    
40. Plaintiff relied on clause 38 of the Tenancy Agreement which stated

‘The Board shall have absolute powers at any time to remove and replace the tenant to any other premises should the Board see the need to do so.’

41. Accordingly, Plaintiff contends that it had ‘absolute powers’ to remove and replace Defendant. This cannot be accepted, as Plaintiff as a public body is bound by rules of natural justice and to act reasonably and also bound by Bill of Rights in Constitution of the Republic of Fiji for reasons given previously.
    
42. The facts are disputed between the parties relating to alleged nuisance and subsequent events till a decision to relocate was taken. Defendant was offered another premises and upon refusal another premises was also offered but this evidence of an alternate premises came in affidavit in reply to affidavit in opposition without any documentary evidence.
    
43. Defendant states that alternate premises for relocation given was not suitable for her, due to reasons given in her affidavit in opposition. So there are disputed facts that cannot be decided in summary manner in order to consider arbitrariness and reasonableness of the decision to relocate and also issuance of notice to quit.
    
44. Defendant needs to show a reason why she refuses to give possession and also satisfy court a right to possession in terms of Section 172 of Land Transfer Act 1971.

“Dismissal of summons

“172. If the person summoned appears he may show cause why he refuses to give possession of such land and, if he proves to the satisfaction of the judge a right to the possession of the land, the judge shall dismiss the summons with costs against the proprietor, mortgagee or lessor or he may make any order and impose any terms he may think fit;”

45. 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." (emphasis is mine)

46. Defendant stated that she was a worker attached to CWM hospital and required to isolate due to present pandemic outbreak. She is a single parent with four young children including a female who was 5 years old when Tenancy Agreement was entered. (see Schedule 1 of annexed B to affidavit in support filed by Plaintiff)
    
47. At the hearing she appeared in person and stated that she even pays a lower rental than other tenants due to her economic condition. So when Plaintiff decided to relocate Defendant and her four children that cannot be done in arbitrary manner in terms of Bill of Rights enshrined in the Constitution of the Republic of Fiji.
    
48. Plaintiff had terminated Defendant’s Tenancy Agreement, but there was no evidence of proper inquiry in to that. There were no evidence of any written complaints. There was no inquiry about such complaints. These are all issues that cannot be decided on disputed facts on summary manner due to the reasons given in this judgment.
    
49. When relocation decision was taken whether Defendant’s status as a low income earning person and her four children and their safety was considered or whether she was discriminated are all disputed facts due to lack of evidence from Plaintiff.
    
50. It was unreasonable to relocate Defendant and her children who were students, without considering all the facts and circumstances of alleged ‘fight’ with a tenant, when there were allegations of , more serious issues in the same Public Rental Estate dealt leniently. All these are facts that cannot be decided on affidavit evidence and summary procedure is not suitable.

CONCLUSION

51. Plaintiff is a public body which had rented a property in Public Rental Estate, to Defendant on concessionary terms. It had terminated Tenancy Agreement as Defendant had not agreed to relocation. Relocation was on alleged ‘fight’ with another tenant. Defendant refused to relocate due to safety of her four children. On the evidence presented at summary application there are disputed facts to determine ‘arbitraryness’ of the eviction of Defendant. So summons for vacant possession struck off. Considering facts parties to bear their costs.
    

FINAL ORDERS

1. Summons for vacant possession is struck off.
2. No costs
   

Dated at Suva this 25^th day of February, 2022.

.....................................

Justice Deepthi Amaratunga

High Court, Suva