Cailachame v Low Hong (CA 37/2017) [2019] SCSC 893 (10 October 2019);

Flynote: 
Headnote and Holding: 

Rent Board in an attempt to ensure that justice be done expeditiously did not hear both sides to the dispute - procedurally unfair - matter remitted to Rent Board

GOVINDEN J  

[1]        This is an appeal against a decision of the Rent Board Tribunal dated the 13th of December 2017. The decision of the Rent Board was made in an Application by the landlord, being the Respondent in this case, to evict the Appellant.  The Respondent had averred in his Application that the Appellant had failed to leave the rented premises upon the expiry of the term of the Rent Agreement. This despite of the fact of the Appellant having been duly notified that the Respondent’s mother and the Respondent’s sister required the immediate used of the rented premises for habitation. The Appellant had denied those averments and requested for legal aid in order to defend  his position and informed the Tribunal the he was no longer in possession of the rented premises of which he had vacated since the 7th of December 2017.

[2]        On the date fixed for the first time appearance of the Appellant the Rent Board Tribunal taking into consideration the fact that the Appellant had averred that he had vacated the premises and that he had already had alternative accommodation, ordered for the eviction of the Appellant and ordered that he hand over the premises to the Respondent on or before the 7th of December 2017.

The Appeal     

[3]        Being dissatisfied with this Ruling of the Rent Board Tribunal the Appellant has appealed to the Court on the following grounds:-

1.         The Rent Board order is against the Rule of natural Justice is based and prejudiced and the Board neglected the Appellant’s request to a new date to file a defence through a lawyer. 

2.         The Board made a decision without hearing the parties. No party was examined

3.         The Board neglected to take note that the Appellant was not served by notice of demand prior to filing the eviction application.

4.         The Board blindly ordered the Appellant to vacate in 1 week which is unjust and unreasonable.  It failed to consider the times of 14 days being the time for Appeal.

5.         The Board failed to consider at all the Petition in case RB49/17 in which he requested the Board for a Ruling to restore basic amenities and remove the padlock in the entrance gate to enable the Appellant’s access and use of the demised premises.

6.         The said Board failed to consider the law that the Appellant as Tenant has right to use the demised premises until evicted by a final Court order.

7.         The Board neglected to give effect to Section (9) of the Rent Control Act which prohibits eviction by the Respondent.

8.         It is incorrect that this Appellant has stated he was not residing in the house as averred in the Ruling.

Legal Submissions

[4]        In his submissions in support of the grounds of Appeal, Learned Counsel for the Appellant submitted in respect of ground (1) and (2) of the grounds of Appeal that the Rent Board Tribunal did not observe the Rule of natural justice in hearing the Rent Board Applications and making a decision that is subject to this Appeal.  The Appellant was denied the right to file a defence to the application through a legal representative of his own choice and his hearing was conducted on the basis of the application of the Respondent. That the Appellant was denied the opportunity to cross examine the Appellant now Respondent, on the averment of his application.   In that regards Learned Counsel submitted that the Board acted contrary to S17(1) of the Control of Rent and Tenancy Agreement Act hereinafter entered as the “Act”.

[5]        As far as grounds 3, 4, 5, 6 and 7 are concerned, the Learned Counsel submitted that the Rent Board’s decision was solely based on the application made by the Respondent for the eviction of the Appellant from the premises. As a result the Learned Counsel submitted firstly, that the Board failed to take into consideration that the Appellant was not served with a notice of demand to vacate the premises in pursuant to S9 of the Act.  Secondly that the Board failed to take into consideration that the Appellant had filed an application in RB49/17 against the Respondent for the reconnection of basic amenities to the premises and then remove of the padlock in the entrance gate to enable the Appellant to access and use the demises premises during the currency of the tenancy.

[6]        On the other hand, the Learned Counsel for the Respondent submitted that the grounds of appeal are without merits and must be dismissed.

[7]        The Learned Counsel submitted that the hearing was conduct solely on the basis of a motion of urgency filed by the Applicant of which both parties had been notified.  At any rate it is Learned Counsel submissions that the application for an Attorney was only a delaying tactic on the part of the Appellant, who wanted to stale the proceedings of the tribunal.

[8]        Learned Counsel for the Respondent further submitted that the Learned Chairman of the Rent Board was moreover satisfied as per the affidavit filed by the Respondent that the Appellant had applied for an extension of the agreement to rent the premises and that as per the same agreement the Appellant had to vacate and surrender vacant possession of the premises by the 6th of December 2017. Further it is the Learned Counsel’s submission that the Appellant had had admitted before the Rent Board that he had since the 7th of December 2017 vacated the rent premises and the Rent Board made it decision partly on that admission.

Discussions and determination 

[9]        Ground (1), (2) and (3) can be taking together. They relate to one subject, that is the  procedural fairness before the Rent Board Tribunal. They will hence be dealt with as one ground of appeal by this Court, given that they are intrinsically linked but on the facts and the law.

[10]     Article 19(17) of the Constitution of Seychelles guaranties and safeguard the right to fair hearing in civil matters before Courts and tribunals.  It provides as follows:- “Any Court or other Authority required or empowered by law to determine the existence or extent of any civil right or obligations shall be established by law and shall be independent and impartial and where proceedings for such a determination are instituted by any person before such a Court or other Authorities the case shall be given a fair hearing with a recognisance time.”    

[11]      Fair hearing under Article 19(7) will be inclusive of the right to legal representation; the right to fair hearing and the right to be given sufficient time and opportunities to prepare a defence.

[12]      S17 (1) of the Act reinstate in law the right to fair hearing as set out under the Constitution.  It provides as follows “the Board before making any order shall give all interested parties the opportunity of being heard and of producing such evidence as the Board may seem relevant.” These rights must be made available to parties before the Rent Board Tribunal.      

[13]      I have given careful consideration to the submissions of both Counsels in this case, I have thoroughly scrutinised the grounds of appeal in the light of the applicable law and the proceedings of the Rent Board.  Having do so, I find that the Board gave its decision after it had been moved on a motion for an urgent hearing filed by the Applicant. At the time that it gave the impugned decision the application for eviction and the motion had been served upon the Appellant. The Rent Board was apparently hard pressed to give that decision urgently, so much so that on the day that it give its Ruling the Applicant was appearing before Court for the first time, having only been  served with the pleadings of the Applicant.                                                          

[14]      The record revealed that the opportunity of being heard through Counsel and the opportunity of producing evidence was requested by the Appellant.  In its Ruling the Rent Board noted the following “the Respondent requested time to get legal aid and to defend his position” Nevertheless, for the reasons that they gave, the members of the Board did not see it fit to grant to the Appellant some more time.  They summarily give judgment in favour of the Respondent and ordered his eviction thereon and then.  

[15]      Looking at the records I find that the Appellant did admit in evidence that he had left the rented premises.  However, the record also reveals that though he made this admission he did not admit to the application for his eviction from the rented premises.

[16]      As a result, I am of the view that the Board made an error of fact.  In that they mistook the admission of vacation of the premises, they mistook it to being an admission of the Application.  As a result of this error the Board denied the Appellant the opportunity of submitting to it the evidence of the fact that he was not served with a notice of demand to vacate the rented premises under Section 9 of the Act and the further opportunity to show to the Board that he had filed a separate suit before the Rent Board in which he had asked for the restrain of amenities and the removal of a padlock on the door of the rented premises. 

[17]      It appears to me that the Board, in an attempt to ensure that justice be done by expeditiously hearing, created an injustice by hearing only the Applicant’s case. This have lead to a breach of Article 17(1) of the Act.

[18]      Accordingly, found that the Appellant has proved the 1, 2 and 3rd grounds of appeal and I dismiss the Rent Board Tribunal decision on that basis.  Having done so, I find that this dispose of this appeal in its entirety and the Court will therefore not pronounce on the other grounds of appeal.

[19]      I remit this case back to the Rent Board for it to hear the Application de novo in line with Section 17(1) of the Act.

[20]      I make no order as to cost.   

 

Signed, dated and delivered at Ile du Port 11 October 2019

 

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Govinden J