Sang Fat Co. Ltd.
THE SUPREME COURT OF
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 21st January 2003
Present at the hearing:-
2. Clauses 1 to 3 and 5 to 7 of the agreement provided (in translation) as follows:
“(1) The present lease is made for a period of three years, renewable thereafter.
(2) The tenant rents the building for the purposes of a hotel business including a restaurant and a boarding house.
(3) The costs of all repairs shall be borne by the tenant.
(5) The company shall enjoy the above mentioned buildings as it so wishes.
(6) The rent has been fixed at 2,000 rupees payable at the end of each month, as from the month of September.
(7) The company shall have the rights to innovate or repair in wood the buildings for the purpose of improvement.”
Clause 7 incorporates an agreed correction of the translation in the record.
3. There was some evidence (though no findings were made below) that the premises were in a poor state of repair at the time of the letting. The tenant ran the premises under the name of “
5. There was also a dispute, which is no longer a live issue, as to the use to which the buildings were put immediately before the fire. The landlord’s case was that the first building was used as a boarding house and restaurant, and that the second building was a garage, used as a store. The tenant’s case was that the first building was a boarding house with a residents’ dining room (but no kitchen) and that the second building was a restaurant. The landlord’s case was that it was only after the fire that the tenant tried, by hasty and unauthorised buildings operations, to re-establish what was left of the business in the second building.
7. In these circumstances the landlord on
8. While these proceedings were pending in the Supreme Court the landlord on
9. The landlord’s claim that the tenancy was at an end was based on article 1722 of the Code Civil, which is in the following terms:-
“Si, pendant la durée du bail, la chose louée est détruite en totalité par cas fortuit, le bail est résilié de plein droit; si elle n’est détruite qu’en partie, le preneur peut, suivant les circonstances demander ou une diminuition du prix, ou la résiliation même du bail. Dans l’un et l’autre cas, il n’y a lieu à aucun dédommagement.”
English translation of Article 1722 Code Civil Mauricien (CCM):
“If during the currency of the lease, the thing leased is totally destroyed by accident, the lease is automatically rescinded. If it is destroyed in part, the lessee may, depending on the circumstances, claim either a reduction of the rent or the rescission of the lease itself. In either case, there shall be no claim for compensation.”
10. At a hearing on
12. At a hearing on
13. The district magistrate gave judgment a year later, on
14. Having summarised the evidence and the parties’ submissions the district magistrate set out his findings very shortly:-
“The report of the constat made by the usher Eddoo indicates clearly that out of the three buildings leased to the defendant, the main building has been completely destroyed. On the other hand the photographs produced indicates clearly the extent of the repairs carried out by the defendant after the fire.
True it is that the agreement reached between the parties gave the defendant certain rights to repair the building with a view to improving same. That right was limitative and did in no way confer the rights on the defendant to put up additions and causing structural repairs.”
He then referred to article 1722 and to some authorities on the topic of total loss. He concluded that the landlord had made out his case and that the tenancy had come to an end. He made orders for possession, for restoration of the premises to their original state, and for Rs10,000 damages.
15. The tenant appealed on numerous grounds. The Court of Civil Appeal (
16. Before their Lordships the tenant has maintained the objection to the District Court’s jurisdiction which was rejected by both lower courts. The tenant has also relied on two general grounds of appeal (failure to identify and decide essential issues) and on a particular point on reasonableness under section 20 of the Landlord and Tenant Act (“the 1960 Act”). In order to assess these grounds of appeal it is necessary to refer to the relevant statutory provisions.
17. One of the purposes of the 1960 Act was to prevent the exploitation of tenants in the difficult conditions created by cyclones which had caused extensive damage to property in
18. Two provisions of the 1960 Act call for particular mention. In relation to the jurisdiction of the court section 3(1) provided as follows:-
“(a) Notwithstanding any rule of law or enactment, the court shall, irrespective of the amount of rent claimed, have exclusive jurisdiction to hear and determine any matter or action arising out of, or brought under, this Act, on the plaint of any landlord or tenant, and, in the exercise of that jurisdiction, shall have all the powers the court has in civil cases.
(b) Except where, in the opinion of the court, the application or plaint was frivolous, no costs shall be allowed in any such proceedings other than proceedings under section 20(1)(a).”
19. Section 20(1) of the 1960 Act contained a general prohibition on any order for recovery of possession of any dwelling house (or, under section 23, business premises) being made by a court except in the circumstances covered by one of the eight paragraphs set out in section 20(1), the terms of which are reminiscent of the English Rent Acts (or, as modified by section 23, the English Landlord and Tenant Act 1954, Part II). Paragraph (a) covered the case where:-
“any rent lawfully due from the tenant has not been paid, or any other obligation of the tenancy, whether under the contract of tenancy or under this Act, so far as is consistent with this Act has been broken or not performed.”
Paragraph (h) covered the case where the premises were in such a dilapidated condition that the repairs required to put it in tenantable condition could not be effected without the tenant vacating the premises (but neither side placed any reliance on that paragraph, either before their Lordships or below).
20. In every case falling within section 20(1) no order for possession was to be made unless the court considered it reasonable to make such order. The district magistrate did not make any express reference to this requirement in his judgment, and another issue for their Lordships was whether the Court of Civil Appeal was right to assume that he must have had it in mind (or to form its own view that it was reasonable to make an order for possession).
21. Their Lordships were also referred to some provisions of the Courts Act and the District and Intermediate Courts (Civil Jurisdiction) Act (“the Civil Jurisdiction Act”). Section 106 of the former provides as follows:-
“(1) The Intermediate Court or a District Court shall have jurisdiction in any action by a landlord to obtain cancellation of a lease, with or without damages, or to recover possession of real property from a tenant or occupier, including an action where the value of the property exceeds the prescribed amount.
(2) Where the yearly rent or rental value of the property does not exceed the prescribed amount and the sum claimed for damages, if any, and for rent do not together exceed the prescribed amount, the cancellation of any lease, damages and possession of real property from a tenant or occupier may be claimed in the same plaint in which rent is claimed.
(3) This section shall not affect the operation of the Landlord and Tenant Act.”
Section 11 of the latter provides as follows:
“(1) (a) No plaintiff shall divide any cause of action for the purpose of bringing two or more suits, but a plaintiff who has a cause of action for more than the prescribed amount may abandon the excess, and may, on proving his case, recover an amount not exceeding the prescribed amount.
(b) The judgment of the court upon such plaint shall be in full discharge of all demands in respect of such cause of action, and entry of the judgment shall be made accordingly.
(2) The plaintiff may join several causes of action in the same plaint provided they do not exceed the jurisdiction of the court.”
22. It is not easy to see how these provisions (and section 3 of the 1960 Act, referred to earlier) are intended to operate in a case which has all the features of the present case, that is (i) a claim for possession of premises falling within section 20(1) of the 1960 Act; (ii) an additional claim for a declaration based on total loss under article 1722 of the Code; (iii) a claim for damages of Rs10,000 (which was at the relevant time the prescribed amount for proceedings before the District Court); (iv) an annual rent far in excess of the prescribed amount; but (v) no claim for arrears of rent. In the absence of fuller argument than time permitted, their Lordships are reluctant to decide the issue of jurisdiction on any broader ground than is necessary in order to dispose of this appeal.
23. The district magistrate’s decision to assume jurisdiction, and the Court of Civil Appeal’s upholding of that decision, were based mainly on Ramcharan v Natien  MR 530. In that case the Court of Civil Appeal held that a plaintiff making a claim in the District Court under the 1960 Act could also make a claim arising otherwise than under the 1960 Act, so long as there was no procedural obstacle. Section 11(2) of the Civil Jurisdiction Act removed any procedural obstacle provided that the relevant monetary limit (the prescribed amount) was not exceeded.
24. In their Lordships’ view the courts below were right to assume jurisdiction on these grounds. The starting point is that section 3 of the 1960 Act gave the District Court jurisdiction, and indeed exclusive jurisdiction, in respect of the landlord’s claim for possession of the demised premises. That was, legally and economically, the landlord’s most important claim. Section 11(2) of the Civil Jurisdiction Act enabled the landlord to join with the claim for possession a claim for damages not exceeding the prescribed amount. It appears that the district magistrate did not make any formal declaration about total loss under article 1722. The relief in the nature of a mandatory injunction granted by the district magistrate was discharged by the Court of Civil Appeal, and there is no cross-appeal on that point. In these circumstances their Lordships are satisfied that the district magistrate’s order, as varied on appeal, was made within his jurisdiction. It is not necessary to consider the precise interrelation of subsections (1) and (2) of section 106 of the Courts Act, which may be a matter of some difficulty in a case outside the exclusive jurisdiction conferred by section 3 of the 1960 Act (that is, in a case concerned with a tenancy of furnished premises or undeveloped land).
25. In his submissions as to the merits Mr Ollivry QC criticised the district magistrate for having failed to make clear findings about the alleged breaches of the tenant’s obligations, and for having failed to address the reasonableness of making an order for possession (as section 20(1) of the 1960 Act required). The district magistrate did encounter problems in hearing the case. For reasons beyond his control (that is, the pending contempt of court proceedings in the Supreme Court) more than a year elapsed between the sitting at which he heard oral evidence from the usher and from the landlord, and the sitting at which he heard oral evidence from
26. There is some force in these criticisms. Nevertheless their Lordships are satisfied that the district magistrate did (in the passage of his judgment set out at para 14 above) find that the tenant had carried out extensive structural alterations and additions after the fire, and that this constituted a breach of the tenant’s obligations under the tenancy agreement. The photographs to which the district magistrate referred had been taken by the landlord himself, mostly on the occasion of the second constat on
28. The district magistrate did not make any finding on the landlord’s separate complaint relating to the use of the demised premises. The evidence before the court was unclear and probably did not establish that the tenant had changed the “destination des lieux” in such a way as to amount to a breach, especially in view of clause 5 of the agreement (“La compagnie jouit les bâtiments mentionnés ci-dessus comme bon lui semble”). This alleged breach of obligation does not seem to have been an issue in the Court of Civil Appeal.
29. The Court of Civil Appeal did however have to deal with the issue of reasonableness under section 20(1) of the 1960 Act. It did so in the following terms:-
“We were also addressed on the issue of reasonableness of the order. We agree that, although the learned Magistrate did not expressly state that he addressed his mind to the issue, it was reasonable to make the order prayed for, when we look at the evidence on record. See Vaghjee v Gopee 1960 MR 40 and
30. The two cases referred to in that passage were decisions on the Rent Restrictions Ordinance 1951, section 7 of which imposed the same test of reasonableness. They show that an appellate court should be slow to conclude that a magistrate sitting in the District Court, and dealing with possession proceedings on a regular basis, cannot have addressed his mind to this very important statutory requirement. It is obviously best practice for a magistrate to refer expressly to the requirement in every case, and where appropriate to state briefly the reasons for his conclusion. But their Lordships are not persuaded that the Court of Civil Appeal erred in dealing with this issue as it did.
31. Their Lordships will accordingly dismiss this appeal with costs.