Yang v SPS Limited (CS 72/2013) [2017] SCSC 365 (30 May 2016);

IN THE SUPREME COURT OF SEYCHELLES
Civil Side:  72/2013

       [2016] SCSC 365

 

IN THE MATTER OF: Zihai Yang
Applicant

versus

SPS Limited
Respondent

AND IN THE MATTER OF:

An application for summons to show cause pursuant to Section 251 of the Seychelles Code of Civil Procedure as read with Section 10[5] of the Control of Rent and Tenancy Agreements Act.


ZIHAI YANG
Olivier Maradan Building, Victoria, Mahe
Judgment Creditor

versus

SPS LIMITED
c/o Mr Andre Beaufond, a director thereof
of Belonie, Mahe, Seychelles
Judgment Debtor


Heard:            02 February 2016

Counsel:Mr Ally for Judgment Creditor
           
            Mr Elizabeth for Judgment Debtor
           
Delivered:        30 May 2016

JUDGMENT and ORDER

McKee J


[1] I do not intend to rehearse the full facts of this matter since the point in issue is narrow. There is a judgment in favour of the Judgment Creditor in which it is averred by Petition dated 31st July 2013 by the Judgment Creditor that unpaid rent is due and owing for the period up to May 2011 when it is averred that the Judgment Debtor vacated the leased business premises [hereinafter referred to as “the premises” within Ste Claire Building, Victoria, Mahe. I think it would be fair to say that this matter has had a tortuous journey through the court system. The Judgment Debtor refused to make payment based on this calculation and this non-payment was followed by a Summons after an Unsatisfied Judgment dated 7th January 2014 issued in terms of section 251 of the Seychelles Code of Civil Procedure [Cap 231]. The Judgment Debtor took this opportunity to lodge written Defences in which he averred that a substantial payment of Rs 41,529.00 had already been paid and that the balance due amounted to Rs 791.00 since he had vacated the premises on the earlier date of August 2010.
[2] In my opinion rent is only due and owing for the period when the Judgment Debtor was in occupation of the premises. Thus the point has now been reached when a determination is required to establish the due date when the Judgment Debtor vacated the premises and the period, if any, for which outstanding rent still remains due.
[3] The Judgment Creditor took the position that the date when the Judgment Debtor vacated the premises was in May 2011.
[4] The Judgment Debtor at this late stage disagrees and has lodged a Statement of Defence with supporting documents. Evidence was also given to the Court by Ms Gerenda Larsen, the Administration and Operations Manageress of the Judgment Debtor. As such, I accept that she is a proper person to speak to the content of these documents. In essence the evidence of the Judgment Debtor is as follows. The Judgment Debtor was the tenant of the premises but vacated the premises on a date in August 2010, which may have been on or around 10th August 2010. A lease agreement for new premises taken by the Judgment Debtor at Jumaye Building had a commencement date of 5th August 2010.There was also presented to the Court as an exhibit a copy of a letter addressed to PUC, ie the Public Utilities Corporation, advising that the Judgment Debtor had vacated the premises at Ste Claire Building as at 9th August 2010 and that a supply of electricity was not longer required. I can infer that the Judgment Debtor had ceased active occupation there. The third relevant document, and spoken to by Ms Larsen, is a copy of a letter from the Judgment Debtor to the Administration Section of the Catholic Mission, the former Lessors of the premises prior to the assignment of its interests to the present Judgment Creditor, advising that the Judgment Debtor had totally vacated the premises on 9th September 2010 and it no longer considered itself responsible for its security. Ms Larsen explained that this notice was sent by hand to the Catholic Mission and this was supported by a copy of an entry in the despatch book of the Judgment Debtor confirming receipt thereof. This intimation had been passed to the former lessors rather than the present lessors in view of the history of this matter and what could perhaps be called the general ill feeling which apparently had been generated during this case. In cross-examination Counsel for the Judgment Creditor maintained the position that arrears of rent were due up to May 2011.
[5] FINDINGS.
[6] This is a civil matter and proof is on the balance of probabilities rather than the criminal standard of proof of beyond reasonable doubt. I find Ms Gerenda Larsen a credible witness and accept that she has given truthful evidence as to the course of events during the months of July, August and September 2010.
[7] I have considered all the evidence and find that the Judgment Debtor ceased to have occupation of its premises at Ste Claire Building on or around 10th September 2010. I accept that formal notice of the vacation of the premises was delivered to the Catholic Mission rather than the Judgment Creditor. I can understand and accept the thinking behind this action in all the circumstances. I consider that the prudent follow-up action for the Catholic Mission as former lessor would have been, if it did not do so, to pass the formal notice from the Judgment Debtor on to the Judgment Creditor thus advising him of the up-to-date change in circumstances. There is simply no evidence on this but, in my view, it is a factor which, in all fairness, should be taken into account and allowance made. In these circumstances while actual occupation may have ceased around 10th September 2010, I find that the rent should be calculated and payable up to 30th September 2010.
[8] There is evidence of a substantial payment of Rs 41,529 which, on Ms Larsen’s evidence, is the rent up to 31st July 2010. The monthly rent for the period July, August, and September 2014, if I read the Statement of Defence correctly, was Rs 5290. I find that rent for the period 1st August 2010 to 30th September 2010, that is, 2 months’ rent, remains due and outstanding, and hence the sum still to be paid is Rs10,580.
[9] If, in fact the monthly rental quoted by me is in error, I leave it to the parties to make the necessary adjustments on the basis that two months’ rent remains due and owing.
[10] I make an order that the balance of outstanding rent is to be paid on or before 30th June 2016.
[11] I make no order for costs.


Signed, dated and delivered at Ile du Port on 30 May 2016

 

C McKee
Judge of the Supreme Court