PILLAY J:
- The Plaintiff seeks an order:
a) declaring her the sole tenant in the Agreement
b) directing the second Defendant to remove the first Defendant from the Agreement and transfer the Agreement into the Plaintiff’s sole name.
- By way of an Amended Plaint filed on 15th May 2023, the Plaintiff makes the following claims:
1. The Plaintiff and 1st Defendant are joint tenants and have signed a tenancy agreement (‘the Agreement’) with the 2nd Defendant, dated 4th September 2020 and registered on 2nd October 2010 for the rent of a three-bedroom unit located at Block-B Unit 3, Grand Bassin Housing Estate Anse Aux Pin (hereinafter the ‘dwelling’) solely, since 2020.
2. That in or about the year 2014 to March 2021 the Plaintiff and 1st Defendant were in a relationship.
3. That the relationship has broken down and the parties are no longer in a relationship.
4. That at all material times the Plaintiff has been making monthly payments towards the rent of the dwelling since 2005 by monthly instalments of SCR 340.00.
5. That from 2018 onwards the Plaintiff began making monthly repayments of SCR 1, 000.00 towards the rent deducted from her salary.
6. The parties moved into dwelling house since September 2020 and the 1st Defendant left the dwelling in or about March 2021.
7. That the 1st Defendant has not returned to the dwelling since March 2021.
8. That the 1st Defendant is not and has never made any payments towards the rent of the said dwelling.
9. That in accordance with paragraph 6 of the Agreement the 2nd Defendant has a discretion to terminate the Agreement and decide to allocate the house in the individual name, to any one of the joint tenants if the joint tenants sever their family life due to domestic differences.
- On 9th May 2023 the first Defendant filed an Amended Defence and Counterclaim as follows:
1. It is admitted that the parties entered a Tenancy Agreement, save that it is averred that although the tenancy agreement was in both their names the allocation of the dwelling house was obtained through the sole efforts of the first Defendant.
2. The Defendant admits to a relationship with the Plaintiff in or about the year 2014, he denies that the relationship ended in March 2021. The Defendant avers that in March 2021 the Plaintiff has members of her family fight with him and force him out of the house.
3. Paragraph 3 is admitted. The Defendant avers that the relationship broke down due to the behaviour of the plaintiff and that it was not the desire of the defendant to have the relationship end.
4. The Plaintiff is put to strict proof the averments of paragraph 4 and 5. The Defendant avers that the arrangement between them was that the rent under the tenancy agreement would be deducted straight from the Plaintiff’s salary whereas the defendant gave the Plaintiff cash in hand and contributed to the household expenses.
5. The averments of paragraph 6 is admitted in regards to the date the parties moved into the dwelling whilst the averments in regards to the Defendant’s moving out is denied.
6. The averments of paragraph 7 of the Plaint is denied and the Defendant avers that the Plaintiff unlawfully denied him access to the dwelling by throwing out his personal belongings and changing the locks of the house rendering the Defendant and his minor child homeless.
7. Paragraph 8 is denied and the averments of paragraph 4 of the defence is repeated.
8. In the circumstances, it is denied that the Plaintiff is entitled to the relied claimed for the reasons alleged or at all.
Counterclaim
9. The Defendant avers that he has been impoverished and the plaintiff unjustly enriched through her enjoyment of the dwelling house whilst due solely to the plaintiff’s unlawful actions, he has had to rent accommodation for himself and his minor son for SCR 10, 000 monthly until he could no longer sustain this and was rendered homeless.
10. The Defendant further avers that the parties were bound by Section 7 of the Tenancy Agreement to use the dwelling house solely for themselves and immediate family and the Plaintiff has breached this condition by bringing a third part to reside in the dwelling whilst the first Defendant is deprived of the use and enjoyment of the house.
- The first Defendant seeks an order that the second Defendant use its discretion under Section 7 of the Tenancy Agreement to allocate the house to the first Defendant and remove the name of the Plaintiff on the Tenancy Agreement. Alternatively, the first Defendant seeks a declaration that the first Defendant is free to instantly occupy and have convenient use of the dwelling hose as a co-tenant permanently or until the determination of the landlord. The first Defendant further seeks the sum of SCR 40, 000 from the Plaintiff as rental costs incurred whilst having been unlawfully denied access to the dwelling house.
- In answer to the Counterclaim the Plaintiff denied the entirely of the first Defendant’s claim. The Plaintiff further stated that “The first Defendant having to seek alternate paid accommodation was not due to any action on her part, but rather his own voluntary vacation of the premises. His minor son as well had vacated the premises prior to the second Defendant on or around February 2021. Furthermore, it is categorically denied that remaining in the dwelling house in which she solely pays for amounts to unjust enrichment.”
- Though she admitted that Clause 7 of the Tenancy Agreement stipulates the occupancy conditions, she denied that any third parties are residing in the dwelling house in question. She further stated that “the second Defendant himself breached the said Clause providing his key to various persons allowing them unfettered access to the dwelling.”
- She prayed for the dismissal of the first Defendant’s claims.
- The second Defendant admitted the claims of the Plaintiff save that it has no knowledge of the duration of the Plaintiff’s and the first Defendant’s relationship. The second Defendant claimed that the payments were made by the Plaintiff under the Home Ownership Scheme and is still making payments under the said Scheme. It further has no knowledge when the first Defendant left the dwelling house. It put both the Plaintiff and the first Defendant to proof as to when family life was severed and their respective contribution towards the property.
- The evidence of the Plaintiff is that she lives at Gran Bassin, Anse Aux Pins and works at SPTC. She lives in PMC Flat Unit 3 Block D and has been doing so since 2020.
- Lucianna Freminot testified that she lives at Anse Aux Pins, Caryole. She is a carer with her father. She is the sister of the Plaintiff. During the time they were together they lived at a number of places including at Pa Joe’s at Anse Royale, at Godley Kilindo at Anse Aux Pins and at her father’s place at Anse Aux Pins. The last time they lived together was at Onezime Flat at Anse Aux Pins, at the Gran Bassen Housing Estate in Block B, Unit 3. She has been to that place many times. She helped them to clean the house when they first moved in and then Saturdays and Sundays or when her sister had a day off she would visit.
- It was her testimony that her sister and the first Defendant were not in a healthy relationship. Towards the end he was not contributing at the house, he owed a lot and had a girlfriend on the ground floor of the same building they lived in. He would sit in the stairwell with a knife and threaten to kill the Plaintiff. He would say that he was going to poison her food. This went on for a year until he left.
- During the time this was happening she would go sleep over at her sister’s place. More so because the first Defendant had allowed his brother who had just been released from prison to sleep over at the house. The first Defendant’s son was living with a lady downstairs at the time. The first Defendant had removed his son from the place when he was having trouble with the Plaintiff because he had bad behaviour and would reply to the Plaintiff in obscene languages.
- The only persons who came to the house were members of the Plaintiff’s family. Sometimes she would visit her sister and find a lot of boys inside, kids from around the block and friends.
- Though the first Defendant was living with the lady from downstairs at times he was still coming up to the house to play music and smoke drugs. Then one night her sister called to say that the first Defendant had invited his brother who had just been released from prison to sleep over at the house. That same night the brother asked the Plaintiff to sleep with him. Upon being informed the Plaintiff’s brother came to the house whereupon the first Defendant’s belongings were removed and placed outside, in the hallway.
- In cross examination she could not remember how long the parties had been in a relationship but stated that she had visited them when they lived at Anse Royale and other places at Anse Aux Pins. She used to stay over other than when they lived at Anse Royale. She denied that the family was causing friction in her sister’s relationship. She denied living in the house and stated that she would sleep over at her sister’s house on occasions. She accepted that her and her brother removed the first Defendant’s belongings from the house but denied evicting him. She explained that the first Defendant had already removed himself from the house and had brought his brother to the house to have a relationship with the Plaintiff.
- The evidence of the first Defendant is to the effect that he lives at Anse Royale. He was in a relationship with the Plaintiff from around 2014. At the time they were renting a house from one Pa Joe. He has three children. One lives with the Plaintiff and the two others are in foster care. He wasn’t sure how old the child with the Plaintiff is but estimated about 8 or 7 years old. At the time he had a case worker at social affairs department working with him with regard to taking back his kids from foster care. The social worker informed him that if he had a house that would be a factor in his favour. Following that he got his kids back, they rented a house a few times until they got the main house. When his son came to live with them they were still renting a house at Plaisance. The Plaintiff agreed to look after the boy as her own and further agreed to put the first Defendant’s name on her application for housing assistance. The Plaintiff was informed to keep paying her housing contribution which she had stopped.
- When they moved into the house, as per the agreement, the Plaintiff, his son and the Plaintiff’s son along with himself were the only ones who were supposed to live in that house. At the time he was working at STC and he agreed with the Plaintiff that she would pay for the house while he paid for the utilities. Then one day she asked him for SCR 2000/-. He said he would try and get the money together but after that she did not ask him again. About three months later he started a relationship with a neighbour downstairs following which the Plaintiff’s family came and removed his things from the house. When the relationship with the neighbour broke down he moved to Anse Royale renting from Pa Joe again paying SCR 2000/- per month for about a year and a half.
- It was his evidence that he was currently living at his aunt’s place. His son is living with and he wants a better place for himself and his son.
- In cross examination he stated that the social worker told him that he should take back his child from foster care in order for him to receive a house from PMC. According to him that was the reason they were given the PMC house. He accepted that himself and the Plaintiff already had a daughter as well as the two other children from the Plaintiff’s relationship.
- He further accepted that he didn’t actually got to PMC to apply for a house. He never took any steps. He accepted that when himself and the Plaintiff got together, the Plaintiff already had an application filed with PMC but stated that she had stopped making payments. He further agreed that the Plaintiff had no obligation to watch his child. He insisted that during the time he was living on the premises he was paying for utilities. It was his evidence that the utility bills are in his name. However, as he is “not living in the house he cannot contribute for someone else to live on his contribution.” According to him he could not live in the place because there was violence.
- In re-examination he stated that he paid for the utilities for the first month when they moved into the house in October. In November problems started. He denied leaving. He stated that he left his things in the house whereas the Plaintiff was the one who went in and out. It was only when he got another girlfriend downstairs that he left but still his things remained in the house.
- The second Defendant did not call adduce any evidence and took the position that it would abide by any decision of the Court.
Submissions
- The Learned counsel for the Plaintiff submitted that the Plaintiff should have the property to the exclusion of the first Defendant for the following reasons:
a. the first Defendant having left the property voluntarily on account of a new relationship.
b. the first Defendant himself told his son to get out of the premises and had him placed with another neighbour in the same building.
c. In addition to having paid all the expenses towards the finances of the property, the Plaintiff was the only person maintaining the property and the first Defendant has made no contribution whatsoever materially or otherwise.
- On the issue of the first Defendant’s son leaving the property, Learned counsel submitted that the first Defendant admitted that he stayed in the room for three months and then fell into a relationship with a person from downstairs. She further submitted that it was the first Defendant who asked his son to move out of the property and into the Unit downstairs and that it was the first Defendant’s testimony was that by the time he was told to come and collect his belongings he was living at Anse Royale.
- She submits that the first Defendant is using his son as an excuse to obtain possession of the property. She submitted that the Plaintiff has a daughter with the first Defendant, for whom she has custody and for whom the first Defendant gives no financial support.
- On the issue of finances Learned counsel submitted that the Plaintiff was the one making payments towards the Housing Finance Loan since 2010 as evidenced by the exhibits. She submits that at no point did the first Defendant make any contribution to the rent.
- She further submitted that the first Defendant’s testimony about giving cash in hand should not be believed as he was not coherent and truthful in his testimony. In some instances, he could not explain the inconsistencies in his testimony when they were put to him.
- On the basis of the evidence on record Learned counsel made the argument that the assertion of the first Defendant that the Plaintiff and himself got the property was because of his sole effort and the social issues with his child was materially untrue.
- She further submits that it was the first Defendant who breached the agreement with the second Defendant by allowing strangers to enter the property whereas the Plaintiff brought one Lousianna Kilindo to stay at the property because she feared for her life and safety due to the behaviour of the first Defendant.
- On the above she submitted that the Plaintiff ought to have the property registered in her sole name as she has borne the burden of obtaining the property, paying for it and maintaining it whilst the first Defendant has proved to be an unreliable witness with nothing to substantiate his claims.
- The Learned counsel for the first Defendant submitted that whilst the tenancy agreement was in both the Plaintiff’s and the first Defendant’s names, the allocation of the dwelling house was obtained through his sole efforts due to the social issues that he was facing with his child and the need for the child to be accommodated with him.
- She submits that the Plaintiff and the first Defendant agreed that she would pay for the rent from her salary and he would give her cash in hand. It is further her submission that there was no obligation for the rent to be paid by both parties to the rental agreement.
- Learned counsel submitted that the Plaintiff unlawfully ejected the first Defendant and threw out his personal belongings, changed the locks to the house rendering him and his child homeless, forcing him to rent accommodation at SCR 10, 000.00 monthly.
- She further submitted that the Plaintiff was in breach of the rental agreement in that she has brought a third party to the dwelling whilst he is deprived of the use and enjoyment of the house.
- It is her submission that the Court should consider the following in its determination:
i. the whole course of dealing between the parties and the intention which the parties must be taken to have had
ii. the relationship between the parties, especially how the respondent came to take possession of the premises, which cannot just be swept under the carpet and the respondent taken out of the equation
iii. the clear and certain intentions expressed in the agreement between the parties.
- The first Defendant counterclaims on the basis that he has been impoverished and the Plaintiff unjustly enriched. Article 1381 (1) of the Civil Code provides:
“If a person suffers some detriment without lawful cause and another is correspondingly enriched without lawful cause, the former shall be able to recover what is due to him to the extent of the enrichment of the latter. Provided that this action for unjust enrichment shall only be admissible if the person suffering the detriment cannot avail himself of another action in contract, or quasi-contract, delict or quasi-delict; provided also that detriment has not been caused by the fault of the person suffering it.”
- Per Twomey CJ in the case of Larue v Hertel & Anor (CS 39/2015) [2017] SCSC 923 (17 September 2017) at paragraph 22 that:
It is trite that an action de in rem verso or in unjust enrichment is maintainable so as long as all the five conditions specified in Article 1381-1 are fulfilled: an enrichment, a corresponding impoverishment, a connection between the enrichment and the impoverishment, the absence of lawful cause, no other remedy being available (see Dodin v Arrisol 2003) SLR 197.)
- In Larue above, CJ Twomey found that:
[23] … the conditions of the provisions of Article 1381 (1) are met. The Plaintiff has been evicted from the home albeit because of his acts towards the First Defendant as borne out by the Family Tribunal Proceedings but has had deductions for the loan repayment deducted from his salary through the non-cancellation of the same by the Second Defendant.
[24] The First Defendant has been enriched as she remained in the house for which the Plaintiff has been paying. Similarly, the Second Defendant has been enriched in that they have received payment for a property for which the Plaintiff has had no benefit since his eviction.
- In contrast, in the current matter, evidence clearly shows that it was the Plaintiff who was making payments for the property when they moved in and even before they moved in it was the Plaintiff who was making contributions for the property. Furthermore, by his own admission, when he met the Plaintiff she already had an application for housing pending with the second Defendant. In re-examination he stated that he paid utilities for the first month and thereafter problems started. Coupled with his evidence that he could not be making payments when he was not living in the premised, the only conclusion is that he was not making any payments past the first month himself and the Plaintiff moved into the property. Consequently, it cannot be said that he was impoverished.
- It if further noted that by his own admission he got into a relationship with a neighbour downstairs and went to live with her, though he left his things in the property. Though he left his things in the property, he cannot be said to have been living there and that it was the fault of the Plaintiff that he had to rent another place to live in when he broke up with the neighbour downstairs. He left the property of his own volition.
- With that said and in consideration of the principles enunciated above in Larue I find no reason to disbelieve the Plaintiff’s evidence that the Defendant left the house of his own accord and as such should not be entitled to any damages. I find that there was no impoverishment caused by the Plaintiff.
- As regards the issue of breach of the Agreement, the evidence of the Plaintiff and her witnesses is that her family members came to visit her and the Plaintiff’s sister stayed with her overnight at times as a result of the first Defendant’s conduct.
- At this stage it is important to note that in terms of credibility that I found the Plaintiff to be credible. I found no reason to disbelieve her or to doubt the veracity of her evidence. On the other hand, the Defendant was using his child as an excuse to regain possession of a house when the evidence shows that he left the same child in the custody of the Plaintiff while he moved in with another woman just one floor below the flat in which the Plaintiff lived with his own child.
- In conclusion I find that the Plaintiff did not breach the Lease Agreement by bringing third parties to the house with the intent as particularised in the Agreement. On a reading of the Agreement, in my view third parties were other partners or the like. It was not meant to prohibit the parties having their family members stay over with them for a night. More so in the situation in which the Plaintiff found herself in where the Defendant had invited his brother to stayover in the house while he was not at the house but living with another woman.
- On a consideration of all the above I find in favour of the Plaintiff and I hereby declare the Plaintiff the sole tenant in the Agreement
- I further direct the second Defendant to exercise its discretion pursuant to clause 6 to remove the first Defendant from the Agreement and transfer the Agreement into the Plaintiff’s sole name.
- The first Defendant’s counter claim is dismissed.
- Taking into account the nature of this case I make no order for costs.
Signed, dated and delivered at Ile du Port on …………
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Pillay J
Cited documents 1
Judgment 1
1. | Larue v Hertel & Anor (CS 39/2015) [2017] SCSC 923 (17 September 2017) | 2 citations |