Union Vale Car Hire (Proprietary) Limited v Beau Vallon Properties Limited (CS 81/2008)  SCSC 375 (25 May 2016);
IN THE SUPREME COURT OF SEYCHELLES Civil Side: CS 8112008
 SCSC 375
UNION VALE CAR HIRE (PROPRIETARY) LIMITED
BEAU VALLON PROPERTIES LIMITED
Counsel: Mrs. Alexia Amesbury for plaintiff
Mr. Melchior Vidot for defendant
Delivered: 25 May 2016
 Plaintiff is Union Vale Car Hire Proprietary Limited. Plaintiff is and was at all material times a car hire operator.
 Defendant is Beau Vallon Properties Limited. Defendant is and was at all material times the owner and operator of the Coral Strand Hotel.
 Plaintiff brought this suit in the Supreme Court on 26 March, 2008, against Defendant for (i) a declaration that it is a statutory tenant; (ii) a declaration that the termination of the tenancy agreement by Defendant is unlawful; (iii) an order restraining Defendant from evicting Plaintiff from the "business premises"; (iv) loss and damages in the sum of €uro (€)7800.001- and continuing against Defendant; and (v) costs.
 Defence and counter-claim is dated 9 October, 2012. Defence and counter-claim has not been filed in the registry of the Supreme Court. Defence to counter-claim dated 15 November, 2012, has also not been f led in the registry of the Supreme Court. The defence and counterclaim and defence to counter-claim do not form part of the record. This suit proceeds on the plaint.
 For Plaintiff I heard oral evidence from its Managing Director, Mr. Michel Gilbert Camille.
 The facts giving rise to Plaintiff's claim are as follows. On 28 April, 1983, Plaintiff was permitted by the Coral Strand Hotel to use the facilities of the hotel in connection with its car hire rental operations in terms of the "Contract between Union Vale Car Hire Ply Ltd and Coral Strand Hotel Re Desk" (exhibit PI). Plaintiff occupied the desk nearest the reception of the Coral Strand Hotel in conjunction with one other car hire company.
 The Coral Strand Hotel came under the ownership and management of Defendant. By a written "Rental Agreement" by and between Defendant and Plaintiff dated 10 July, 1995, for a term of two (2) years commencing 1 July, 1995, and expiring on 30 June, 1997, the "Desk adjacent to the Reception Counter in the Hotel Lobby" continued to be vested in Plaintiff for and in consideration of a monthly rent of Seychelles rupees (SCR) 4000.00/ (exhibit P2). The "Desk adjacent to the Reception Counter in the Hotel Lobby" is hereinafter referred to as the "Desk". In terms of exhibit P2 Plaintiff "shall maintain the desk only 10 conduct its car hire business ... ". The "Rental Agreement" expired on 30 June, 1997. The evidence shows that on and since 30 June, 1997, Plaintiff was allowed to remain in possession of the Desk for the use of its car hire business. Plaintiff continued to pay Defendant a monthly rent of SCR4000.001-, which rent was accepted by Defendant.
 The evidence for Plaintiff as to the ejectment is to the following effect: On 28 March, 2008, just after 10 a.m., three men in the employ of Coral Strand Hotel approached the Desk and told Mr. John Toule, the representative of Plaintiff, to get off the chair. Those men told Mr. John Toule that Plaintiff had no right to use the premises of the Coral Strand Hotel for its car hire business, and Defendant will be removing the Desk. The Desk was removed. Exhibit PI 0 is a video of the incident. Mr. Camille related that two and a half weeks or three weeks before the "counter" was removed, persons in the employ of the Coral Strand Hotel had removed Plaintiffs front "counter" sign and all other marketing paraphernalia of Plaintiff.
 On 29 March, 2008, the representatives of Plaintiff were prevented, by two security guards of Defendant, from entering the Coral Strand Hotel premises. The representatives of Plaintiff were told that Plaintiff should not solicit clients of the Coral Strand Hotel; and that Plaintiff should not use the car park of the Coral Strand Hotel to park any of its vehicles for hire. The evidence of Mr. Camille was that front desk receptionists of Defendant were told not to collect any keys from Defendant's clients when returning Plaintiffs hired vehicles late in the evening.
 Following the removal of the Desk, Plaintiff could not engage in its car hire business on the premises of the Coral Strand Hotel as from 29 March, 2008, until mid- May, 2008. Plaintiff could also not engage in its car hire business during the time that the Coral Strand Hotel was closed down for minor work between mid-May, 2008, and mid-July, 2008. Mr. Camille stated that representatives of Defendant tried to physically remove the representatives of Plaintiff, including himself, from the premises of the Coral Strand Hotel. One such incident took place on 2 July, 2008, (police statement exhibit P4). Plaintiff refused to vacate the premises of the Coral Strand Hotel on account of a letter written by Attorney-at-Law Mr. Francis Chang-Sam to Defendant to the effect that Plaintiff was a protected tenant, and proceedings brought by Plaintiff against Defendant before the Supreme Court of Seychelles (exhibit Pll). Defendant brought proceedings against Plaintiff before the Rent Board.
 The Rent Board case was still pending, when Plaintiff was served with a letter emanating from learned counsel for Defendant dated 12 May, 20 I 0, informing Plaintiff that Defendant will withdraw the case against Plaintiff on condition that Plaintiff will pay Defendant, "all unpaid rent for the period the case was before the Rent Board ... and Union Vale Car Hire is invited to enter into a new lease agreement with my client. My client proposes a monthly rent of Euro Three Hundred (£300) plus a rent free car for the use of a demarcated area in the hotel's reception area. 11 exhibit P5. Plaintiff prepared a new agreement on or about 2010. Defendant did not sign the said agreement. Draft of the agreement tendered as exhibit P6.
 On account of the cases pending before the courts, upon the re-opening of the Coral Strand Hotel in mid-July, 2008, Plaintiff was allocated a new "counter". From mid-July, 2008, to January, 2011, Plaintiff conducted its car hire business on the premises of the Coral Strand Hotel until it closed down for major renovation work. The Coral Strand Hotel re-opened about September or October, 2012.
 Plaintiff paid Defendant rent for the month of March, 2008, which rent Defendant accepted. Plaintiff paid Defendant by cheque dated 30 July, 2008, rent for the months of July and August, 2008 (exhibit P8). Plaintiff received a Coral Strand Hotel receipt for payment of the said rent (exhibit P8). Plaintiff received a letter from Defendant dated 31
July, 2008, enclosing the cheque exhibit P8, stating that Defendant had "cancelled" the said exhibit P8.
 Plaintiff claimed that its removal from the "business premises" is unlawful. The evidence of Mr. Camille sheds light on Plaintiffs claim and the prayer for relief-
"Q Mr Camille as a result of this unlawful termination of the contract that you have, what are you claiming from this court? How many years of loss and damage have you suffered? 1n your plaint you claimed 7800 Euros being loss of earnings and continuing at 600 Euros per day and the time we brought the action it had been only for J 3 days and right now it is 4 years later from the date of the breach and continuing so we are claiming from defendant 600 Euros per day from the date of the breach till today?
A My ladyship just to rectify the claim we are not claiming more than we have lost, what we are claiming is since our counter was taken away in end of March, 2008 there was March 2008, April 2008, half of May 2008 which is 2 and a half months then the hotel closed for minor renovations between mid-May and mid July. When we came back in mid-July a counter was reinstated only because the injunction in front of Justice Karunakaran had ordered that Beau Vallon Properties maintains the status quo until there is a ruling either from the Rent Board or the Supreme Court. So from July 2008 onwards to January, 20 II when the hotel again closed for major renovations we were able to work, so we are not claiming any loss of income for that period. However, from I believe it was either September or October, 2012 when the hotel re-opens till today and continuing, we have not been able to operate at that hotel even though we have written a letter to them to request our entrance or permit our entrance so we can continue on our business, basically we are claiming those 2 and half months back in 2008 plus the September, October 2012 till now and continuing." proceedings of2 July, 2013, at 1:45 p.m ..
 I have considered the oral evidence of Plaintiff in light of the written submissions of counsel.
 Plaintiff claims that it is a protected tenant under section 12 (I) of the Control of Rent and Tenancy Agreements Act as amended [CAP 47]. The Control of Rent and Tenancy Agreements Act as amended [CAP 47] is hereinafter referred to as the "Act". Section 12 (I) of the Act provides -
"12 (I) - A lessee who under the provisions of this Act retains possession of any dwell ing house shall so long as he retains possession observe and be entitled to the benefit of all the terms expressed or implied in the original contract of letting so far as the same are consistent with the provisions of th is Act".
According to Plaintiff it occupied the Desk for the purpose of a business carried on by it, but is the Desk "premises" within the meaning of the Act. Counsel for Plaintiff has suggested that the tenancy which Plaintiff has of the Desk is within the Act. I have to consider this question which turns on the construction of section 13 (I) and other sections of the Act. Section 13 (I) of the Act, so far as relevant, provides -
"13 - (I) This Act shall apply to any premises used for business, trade or professional purposes or for the public service as it applied to a dwelling house and as though references to a "dwelling house", "house" and "dwelling" includes references to any such premises, but this Act in its application to such premises shall have effect subject to the following modifications:
The following paragraphs shall be added after paragraph U) of subsection (2) of section 10:
(k) the premises are reasonably required by the lessor for business, trade or professional purposes or for the public service;
(I) the premises are in whole or in part licensed for the sale of intoxicating liquor and the lessee has committed an offence as holder of the licence or has not conducted the business to the satisfaction of the licensing authority, or has carried it on in a manner detrimental to the public interest, or the renewal of the licence has for any reason been refused.
(2) The application of this Act to such premises as aforesaid shall not extend to a letting in any market ...".
The word "premises" is not defined in the Act. I am of the opinion that it is fair to say that it is plain that the Legislature is considering primarily physical premises such as bui Idings. I find for instance, in section 3 of the Act that the Act "shall apply to a house or part of a house let as a separate dwelling" or, by extension under section 13 of the Act, a building. That argument is fortified by reference to other sections of the Act, particularly section 10 (2) 0), where it is said, that "the dwelling- house is bona fide required for the purpose of being demolished, reconstructed, moved or improved". Moreover, the common thread running through the jurisprudence of the courts of Seychelles is that the Legislature, when it used the word "premises," meant physical premises such as buildings. In the Seychelles Court of Appeal case of West & East Sisters Island A.G v. Bernard Sanders Civil Appeal No. 31 of 1999, delivered on 13 April
2000, the Justices of Appeal opined as follows -
"Secondly, the lease agreement specified in no uncertain terms that the subject matter of the lease was the two islands. Nowhere in the lease agreement or in the affidavits of either party was reference made to the lease of buildings used for business purposes. True it is that the Control of Rent and Tenancy Agreements Act mentions dwelling house and that section 13 extends the provisions of the Act to "premises used for business, trade or professional purposes.
It is clear, however, from the general language and purport of the legislation that it is meant to apply to rented buildings, be they dwelling houses or buildings used for business purposes. Moreover, a close look at section 13 itself shows that the section was not designed to, and cannot, apply to bare land ".
See also the case of Kim Koon v The Roman Catholic Church (1996) SLR 135 on point.
 For these reasons in my opinion, 1 find that the tenancy which Plaintiff has of the Desk is not within the Act. I, therefore, hold that Plaintiff is not a statutory tenant under section
12 (1) of the Act. The result of that is that prayer (ii), (iii), (iv) and (v) fail.
 Before I leave this matter, Istate out of interest that the decisive question when looking at the issue of "ultra petita" is whether or not the prayer for relief - (iv) loss and damages in the sum of £uro (£) 7800.00/- and continuing against Defendant - is covered by the evidence. It is noted that the plaint was filed on 26 March, 2008. According to the evidence of Plaintiff the cause of action arose on 28 March, 2008, when the "counter" was removed. Plaintiff claimed loss and damages as from 28 March, 2008. It is plain that the evidence does not cover the said prayer for relief.
 I dismiss the plaint. There is 110 counter-claim on record.
 Each party shall bear its own costs.
Signed, dated and delivered at Ile du Port on 25 May 2016.
Judge of the Supreme Court