Court dismisses tenant's request for further possession order suspension citing completed construction and landlord loss.

[*173] 1979 Oct 22

(BOYADJIS, S.D.J.)

IN THE DISTRICT COURT OF NICOSIA

KENNEDY HOTELS LTD.,

Applicants,

v.

Michael Georghiou,

Respondent.

(Rent Application No. 926/78).

Landlord and tenant - Statutory tenancy - Order for recovery of possession together with order suspending its execution for a certain period - No further stay of execution possible - Sections 5 and 16(2) of the Rent Control Law, 1975 (Law 36/75), section 47 of the Courts of Justice Law, 1960 (Law 14/60).

Statutes - Construction - Principles applicable - Leges posteriores priores contrarias abrogant - Section 47 of the Courts of Justice Law, 1960 (Law 14/60) abrogated by sections 5 and 16(2) of the Rent Control Law, 1975 (Law 36/75).

M. Iacovou, for Applicant-Tenant.

M. Fotiou, for Respondents-Landlords.

RULING

The following ruling was delivered by:-

BOYADJIS. S.D.J.: The tenant-applicant [*174] applies for an order of the Court suspending the execution of the order for possession issued against him on the 12th April, 1979, for a .further period of 6 months after the 30th September when the said order became operative.

The undisputed facts pertaining to this case are these: The landlords filed an application under sec. 16 (1) (h) of the Rent Control law, No. 36 of 1975, for recovery of possession of their shop at 66, Regeana Street,adjoining, their hotel in Nicosia, on the ground that it was reasonably required by them for demolition and reconstruction in accordance with a building permit which they had secured, from the appropriate authority.

The tenant denied the landlords’ claim and having filed his defence thereto, the application was eventually heard by the Court and determined on April 12th, 1979. The Court found the landlords’ claim justified and ordered the tenant to give up vacant possession of the premises accordingly. In exercise of its powers under sec. 16(2) of the Law, the Court suspended the execution of the order for possession until the 30th September, 1979, having taken into account the material evidence adduced by both sides. One relevant circumstance in issue at the time was the length of time reasonably required by the tenant to complete the erection of his own shops which he had already commenced in Nicosia.

Learned counsel for the tenant based his application on the facts deposed by his client in paras 6 and 7 of his affidavit dated 3rd October, filed in support of the application. [*175] In para 6 it is alleged that his continuous efforts to secure suitable alternative shop were until this day unsuccessful. In para7 it is alleged that the premises which he started building in Nicosia about a. year ago have not yet been completed due to his financial difficulties.

The landlords denied the tenant’s right to any further stay of execution of the order for possession of the premises alleging that the tenant acted in bad faith in that he demanded from them payment of money or the incurring of the expenses necessary for the construction of shelves in his newly erected shops before he gives up possession of their shop. They further alleged that the tenant completed the erection of his shops and produced photographs showing the exterior and interior of these shops.

The landlords also submitted that the tenant’s application should be dismissed for the simple reason that the Court has no jurisdiction to entertain such application at this stage.

I propose first to examine whether the Court is at this stage possessed of jurisdiction to. deal with the tenant’s application on its merits.

Generally speaking, there are in force several provisions which empower the Court to suspend execution of its judgments and/or orders for such time and subject to such terms as the Court

shall think fit. The basic enactment in this respect is sec.47 of the Courts of Justice Law, 1960, which reads as follows:-[*176]

The judgment of every court shall, subject to any direction contained therein to the contrary and notwithstanding that the same shall have been made in default of pleading or of appearance of any party, be binding on all parties to the action immediately on the making thereof and notwithstanding any appeal against the same, but the court by which such judgment is given, or any court having jurisdiction to hear such judgment on appeal, may at any time, if it shall so think fit, and whether an order for execution shall have beer issued or not, direct that execution of such judgment be suspended for such time and subject to such terms or otherwise as to such court may seem “just”.

Relevant is also Rule 5 of Order 34 of the Civil Procedure Rules which runs as follows:-

“Every judgment or order made in any cause or matter requiring any person to do an act thereby order shall state the time, or the time after service of the judgment or order, within which the act is to “be done.”

The corresponding rule in England which is almost similar to our rule 5 of Order 34 is rule 11 of Order 24 of the County Court Rules 1936. In Jones v. Savery (1951) 1 All E.R., 820 this rule was construed as giving power to the Court to postpone the operation of an order for possession. This construction was adopted by our Supreme Court in [*177] Georghios

E. Glykis v. Ioannis Stylianou Ioannides (24 C.L.R., 220), where Order 34, r.5 of the Civil Procedure Rules and section 53 of the Courts of Justice Law, 1953, since repealed and re-eancted in sec. 47 of the Courts of Justice Law, 1960, were expressly said to empower the Court in a proper case to postpone for a certain time the operation of an order for possession.

One might also refer in this respect to rule 11 of Order 40 of our Civil Procedure Rules granting to the court power to give relief on such terms as may be just to any party against whom judgment has been given who applies for a stay of execution or other relief against such judgment upon the ground of facts which have arisen too late to be pleaded.

The matter would have presented no difficulty if the legislature had not enacted in 1975 sections 5 and 16(2) of the Rent Control Law No. 36 of 1975. They read as follows:-

“Sec.5:- An order of the Court under this Law, may, on application, be reviewed, varied or set aside by the Court in the following cases:-

(a) Where the facts of the case affecting the question of rent have materially altered or a substantial change of circumstances has occurred since the order was made;

(b) Where the order was made in consequence of any fraud, misrepresentation or substantial mistake; [*178]

(c) Where there is available fresh evidence of a material nature, which could not by the exercise of reasonable diligence have been produced when the order was made;

(d) Where the order was made in the absence of any necessary or the proper party whose absence was not due to any default or neglect on his part.

“Sec. 16(2) : - The Court, in giving a judgment or making an order under this section, may, subject to the payment by the tenant of any amount lawfully due or becoming due by him, stay or suspend its execution or postpone the date of possession for “such period not exceeding one year and subject to such conditions, if any, as the Court thinks fit.”

A mere reading of the last aforementioned provisions of the Rent Control law, 1975, leads to the

conclusion that the intention of the legislature in enacting them was to limit considerably in the case of statutory tenants the much wider powers of the Court to postpone execution of an order for possession hitherto possessed by virtue of sec. 47 of the Courts of Justice Law, 1 960.

By sec. 16(2) this power was limited, in my opinion, in the following two respects:-

(i) as regards the length of time during which the Court may suspend the operation of a possession order which should not exceed 12 months, and [*179]

(ii) that such order suspending the execution should be made simultaneously with the order for possession.

Section 5 of the Law also restricts the power of the Court to review, vary or set aside any order made under this Law. The section is wide enough to cover ah order for recovery of possession made under Part VIII of the Law, unlike section 5 of the Rent Control (Business Premises) Law No. 17 of 1961, repealed by Law 36 of 1975, which applied only to orders fixing the rent under Part III of the said Law 17 of 1961. Section 5 of Law 36 of 1975 has thus on the one hand extended the power of the Court hitherto possessed under sec.5 of Law 17 of 1961 so as to enable it to review, vary or set aside orders for recovery of possession as well, and on the other hand limited such power only to those cases covered by any one of the four alternative grounds, or circumstances which are exhaustively enumerated or set out therein under paragraphs (a) to (d) both inclusive.

It is clear to me that the tenant in this case, by asking the Court to suspend further the execution of the order for possession dated 12.4.1979, the operation of which has already been suspended on the same day until 30.9.1979, is for all intends and purposes asking the variation of such order within the meaning of sec. 5 of the Law

It is evident from the above analysis of the [*180] conditions and limitations of the powers of the Court to vary or suspend its orders for recovery of possession made under Part VIII of the Rent Control Law, 1975, and from the comparison of secs 5 and 16(2) of this Law on the one hand with sec. 47 of the Courts of Justice Law, 1960, on the other hand, that the two statutes are so entirely inconsistent and incompatible with each other that they cannot possibly stand together in the case of possession orders made against statutory tenants.

In the circumstances, the question is whether the provision of sec. 47 of the Courts of Justice Law, 1960, to the extent that it purports to apply to orders for possession of premises covered by the Rent Control Law, 1975, can survive the enactment of the latter law. I have no difficulty in answering the question in the negative. Section 47 of the Courts of Justice Law is a prior enacted provision of general application, whereas sees 5 and 16

(2) of the Rent Control Law 1975, are special provisions covering special cases and have been subsequently enacted. In such cases the rule is that “leges posteriores priores contrarias abrogant”, i.e. later statutes abrogate prior contrary statutes. In the absence of express words in the later enactment, this abrogation can be done by necessary implication.

The above rule of construction of statutes in best explained in the following extract from the judgment of Smith, J”, in Kutner v. Philipe (1891) 2 Q.B. 267, at pp. 271 - 272:- [*181]

“Now a repeal by implication is only effected when the provisions of a later enactment are so inconsistent with or repugnant to the provisions of an earlier one, that the two cannot stand together, in which case the maxim, ‘Leges posteriores contrarias abrogant’ applies, Unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be implied, and special Acts are not repealed by general Acts unless there is some express reference to the previous legislation, or unless there is a necessary inconsistency in the two Acts standing together: Thorpe v. Adams (Law Rep. 6 C.P. 125).”

The maxim has been further

illustrated and applied in Cyprus in Georghios Petrldes arid others v. The Republic 1964 C.L.R. 413, Attorney General v. The Cyprus Asbestos Mines Ltd., 20(2) C.L.R. 5, The Republic

v. Presiderit District Court of Famagusta, Ex Parte Loukia Marouletti (1971) 1 C.L.R., 226, and Vassiliko Cement Works v. Violaris (1975)1 C.L.R. 256.

The broad maxim “Leges posteriores priores contrarias abrogant”, is, as I understand it, further qualified by the maxim “generalibus specialia derogant”, i.e. special things derogate from general things. It is thus stated in HaIsbury’s Laws of England, 3rd Edn. Vol. 36, at p. 468:-

“Repeal of general enactment by particular. To the extent that the continued applications of a [*182] general enactment to a particular case is inconsistent with special provision subsequently made as respects that case, the general enactment is overriden by the particular, the effect of the latter being to exempt the case in question from the operation of the general enactment or, in other words, to repeal the general enactment in relation to that case.”

In Attorney-General v. Great. Eastern Railway Company (1872) 7 Ch. App. 475, Sir G. Mellish, L.J. said at p. 482:-

“For if we find something expressly different in the Acts, that which is in the special Act must overrule that which is in the general Act. And this, as far as I know, is the universal rule”.

Applying the aforesaid principles in construing sec. 47 of the Courts of Justice Law and sections 5 and 16(2) of the Rent Control Law, 1975, I have come to the conclusion that in the present case where the order for; possession sought to be varied or suspended is in respect, of premises covered by the provisions of the latter law, the jurisdiction of the Court is limited only in those circumstances expressly set out in the aforesaid sections 5 and 16(2) of the Law; outside those circumstances the Court cannot exercise any discretion whatsoever .

Learned counsel for the tenant cited and relied upon the case of Rossiter v. Langley (1925) All E.R., Repr., 567. All that was decided in this case was that the mere [*183] fact that an order for possession has been made by the consent of the parties does not in itself deprive a county court judge of the discretion with which he has been invested by s.5(2) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, as to varying the order by postponing the date for possession. Rossiter’s case is clearly distinguishable from the present case in that the wording of the last aforementioned English section differs considerably from that of our sections 5 and 16(2) of the Law now under consideration. Unlike ours, the English provision; vests the county court with wider jurisdiction to postpone the date for possession without any conditions or limitations. It seems that in enacting it the intention of. the legislature was to widen rather than limit the jurisdiction which the county, court judge might have had under any preexisting enactment, to suspend execution of an order for possession. Salter J., has this to say about it at page 568 of the report :-

“…….. sub-section (2) provides that, where an order for possession has been made the tenant can, at any time up to the last moment, go to the county court judge and ask him to exercise his discretion. That subsection shows an equally emphatic “intention. No wider words could be used. It is obviously a provision intended to be wholly in the interest and for the protection of the tenant, and intended to give to the county court judge, a wide discretion to vary orders for possession up to the [*184] very last moment in the interest of tenants. That power was given in express terms. The question is whether this court has any warrant for restricting these words by saying that an order made by consent is not within this section and cannot be varied.”

I have further directed my attention to the cases of Sheffield Corpn. v. Luxford (1929) 2 K.B. 180, Jones v. Savery (supra) and Georghios Glykis v. Ioannis Ioannides (supra). In all the above cases it was decided that the court had unfettered distretionary power to suspend the operation of an order for possession in a proper case. None of them, however, may help the present tenant, as they are all clearly distinguishable from the present case, in that neither section 5 of Law 36 of 1

975 nor any other similar provision was at that time in force.

It remains to be examined whether the plaintiff has brought his case within sec. 5 of the Law, as he cannot base his application on section 16(2) of the Law for the reason set out earlier in this judgment.

Learned counsel for the tenant concedes that paragraphs (a),(b) and (d) of section 5 cannot possibly be invoked by him in support of his present application. He submitted, however, that his case falls within paragraph (c) thereof which empowers the court to vary an order for possession where there is available fresh evidence of a material nature, which could not by the exercise of reasonable diligence have been produced when the order was made. [*185] Learned counsel further submitted thatthe allegations contained in paragraphs 6 and 7 of the tenant’s affidavit, to which I have already referred, sufficiently bring his case within section 5(c) of the Law. I do not agree with this submission. None of the requirements or circumstances set out in section 5(c) are disclosed either expressly or even indirectly anywhere in the tenant’s affidavit. The tenant’s application cannot, therefore, succeed.

I shall, nevertheless, examine the tenant’s application on its merits as if I did not consider myself fettered by the provision in sections 5 and 16(2) of the Law, in case I am found to be wrong in my conclusion that the present case is exclusively governed by these provisions. Supposing I had a discretion in the matter, would I exercise it in the circumstances of this case in favour of the tenant? The answer is no. The court is under a duty to exercise its discretion judicially, in the sense that matters of hardship, inconvenience and fairness to both sides should be taken into consideration and properly weighed in each case. The tenant has been allowed enough time to secure other accommodation and to complete the erection of his own shops. From the evidence of the manager of the landlord company and the photographs of the shops produced in Court, which I believe, it is very clear that the shops have been completed and that they are already used by the tenant. This evidence destroys completely the factual basis of the tenant’s application who prays for [*186] more time falsely alleging that the erection of his shops has not been completed due to financial difficulties. Examining on the other hand the position of the landlords, one should not lose sight of the fact that further delay, in the operation of the possession order shall result in considerable loss to them though the delay in the demolition and the re-construction of their premises with the every day increasing building costs. Examined on its merits, the tenant’s application could not succeed either.

For all the above reasons the application is dismissed with costs to be assessed by the Registrar of this Court unless agreed upon between the parties.

Application dismissed with costs.