Court grants landlord possession order for rent arrears after valid notice served on tenant's sister.

[*314] 1981 March 21

(PIKIS, P.D.C.)

IN THE DISTRICT COURT OF LARNACA

Pios Ousmianis,

Applicant,

v.

Fotis Nicolaou,

Respondent.

(Rent Control Application No. 104/80).

Landlord and tenant - Statutory tenancy - Arrears of rent - Notice of demand of rent - Service of - Mode - Posting a registered letter which was received by tenant’s sister a sufficient notice - Sections 16(1) (a) and 23(1) of the Rent Control Law, 1975 (Law 36/75).

Advocates - Evidence by, in support of their clients case - Undesirability - Need that law be amended in order to prohibit the right of a party to call his advocate as a witness except where the matter arises ex improviso.

Observations with regard to the need of amendment of section 16(1)(a) of the Rent Control Law, 1975 (Law 36/75) so that the power of the Court to order eviction thereunder may become discretionary.

Applicant in person.

T. Koumis, for the Respondent.

JUDGMENT

The following judgment was delivered by:-

PIKIS, P.D.C.: The applicant claims [*315] recovery of posession of the premises at 45 Cleanthis Kalogeras street, Larnaca, presently in the possession of the respondent who holds as statutory tenant, on the ground that he failed to comply with the statutory notice for the payment of arrears of rent and was in arrears when the proceedings were instituted.

The provisions of s. 16(1)(a) of the Rent Control Law (36/75) confer an unqualified right to the owner to claim an order for recovery of possession where the tenant persists to be in default with regard to the payment of rent after 21 days from service upon him of a statutory notice and remains in default upto the time of the institution of the proceedings. If these prerequisites are satisfied no discretion is vested in the Court to withhold the making of an order for recovery of possession.

The only evidence on the circumstances surrounding the agreement between the parties touching upon the lease of the premises to the respondent and the circumstances under which the premises were occupied comes from the applicant who testified as the first witness in support of his application., Let me say straight away that I accept the evidence of. the applicant as to the circumstances surrounding this tenancy and find as a fact that the premises in question were let to the respondent at a monthly rental of £15. And that respondent was, by the time of the institution of the proceedings, in default of his obligations to pay rent for the months of June, July and August 1980. [*316]

The only remaining issue is whether applicant complied with the remaining prerequisites for the making of an order for recovery, notably whether he served the notice envisaged by s. 16 (1) (a) Law 36/75 and did therefore put the machinery for recovery in motion. I attach no significance to the point raised by the respondent that as from May 1 980 the applicant moved to Nicosia without indicating to the respondent a new address whereto rents might be paid for, rent was almost invariably paid into the bank account of the applicant and respondent did, in fact, pay on 5th July 1980 the rent for the month of May into this account. I find as a fact that respondent did make a payment into the account of the applicant on 5th July 1980 for a sum of £15 representing the rent for the month of May 1980 (See the evidence of applicant and witness Pastellides). This payment is also confirmatory of the evidence of the applicant that the rent for the premises was £15 per month and no less.

Only one question remains for

consideration, whether the statutory notice envisaged by the provisions of s. 16(1) (a), Law 36/75 was served on the respondent. Michael Nicolaou (witness 2), a

postman, testified that on 28th August 1980 he delivered a registered letter addressed to the defendant, to a certain Eleni Christoforou, whom he knew to be the sister of the respondent. Kyriakos Panayiotou (witness 4), an officer in charge of the department for registered letters at the Larnaca post office, produced the list of registered letters delivered [*317] on 28th August 1 980, including a letter addressed to Photos Nicolaou at the place of respondent’s work, notably 45 C1. Kaloghera street, the premises under the occupation of the respondent. In the evidence of Mr. Nicolaou, Eleni Christoforou was regularly seen at respondent’s place of work which, as we may safely gather from his evidence, was the postal address of the respondent, and a lot of correspondence was addressed to him at the aforesaid address. The respondent denied receiving the letter in question and his counsel stated, in response to a notice to produce, that no such letter was in their possession, whereupon the applicant was allowed to produce a copy of the letter addressed on his behalf by his advocate; it was admitted for purposes of identification pending a final ruling on the admissibility of a copy of the original. After the evidence of the post office employees I was invited to admit the copy of the letter in evidence, counsel for the applicant submitting that the factual foundation for its admissibility had been laid. I ruled to the contrary in the absence of evidence as to the posting of the letter, pointing out that the post office slip attached on the copy of this letter was in no way part of the evidence, even for purposes of identification. Thereupon counsel for the applicant intimated to the Court his intention to testify for the applicant with regard to the circumstances of the posting of the letter.

Advocates giving Evidence in Support of the Case of their Client

I intimated to counsel that this is a highly [*318] undersirable course and strong objections were raised by respondent to counsel testifying for his client, the applicant, more so as the evidence was designed to overcome a ruling of. the Court, coming from a person who was present in Court throughout the proceedings. Nevertheless counsel was allowed to testify, as there is no discretion in the Court to limit the right of a party to call witnesses. The right of a litigant to present his case in Court, as he may deem appropriate, safeguarded by article 30, paragraph 3(b) of the Constitution, is not subject to any limitation with regard to the witnesses that he may call; although irregular in that a witness as to fact remained within the Court-room throughout the proceedings. But this irregularity does not deprive him of the right to call a witness, though relevant with regard to the weight that may be attached to such evidence.

The Supreme Court deprecated the practice of an advocate engaged in a case taking the witness stand, a course that invariably undermines an advocate’s position as an officer of justice. (See Advocates Law, Cap. 2, s.15 as amended by Law 4/75.) In Maria N. Erotokritou & 2 Others v. Nicos Costi Soutsos (1965) 1 C.L.R. 162, the Supreme Court reiterated the statement made in Mavrovouniotis v. Nicolaides, 14 C.L.R. 272, 290 that it is highly undersirable that an advocate should give evidence in the cause of his client. In Michael Ahapittas v. Roc-Chik Ltd.

(1968) 1 C.L.R. 1, the Supreme Court deprecated with a similar vigor [*319] the practice of affidavits being sworn by the parties’ advocates, adding that the reasons that make this practice undesirable are so obvious that, need no elaboration. The position of an advocate who participates, in the ministering of justice in Court is such as to require total detachment on his part from the facts of the case so that he may successfully discharge his mission as an officer of justice. The status of an officer of justice is certainly incompatible with that of a witness in the cause and the fusion of the two undermines the efficary of an advocate as an officer of justice. An advocate should not undertake any case in which he may conceivably be required to testify as a witness.

In the instant case having regard to the facts counsel should have foreseen this possibility and should make his choice earlier on.

In my judgment the law should, in the interests of justice and the

legal profession, be amended in order to prohibit the right of a prrty to call his advocate as a witness except where the matter arises ex

improvjso. This could be achieved either by amending the Advocates Law or the rules of etiquette of the legal profession.

(See Rules of Etiquette, Official Gazette, Part III No.839 - 17th November, 1976.) I subscribe to the view that any such limitation of the right to present one’s case would not contravene the provisions of article 30, paragraph 3(b); it is the interests of justice that article 30 purports [*320] to safeguard. The contribution of an advocate to the administration of justice under our system and his position in Court are matters of public interest, His detachment from the facts of the case must be ensured at all times for nothing less than irreproachable conduct is expected from an officer of justice.

The Facts

My disapproval of the conduct of the advocate of the applicant who, be it noted, withdrew from the case after giving evidence in Court, do not exonerate me of the duty of evaluating his evidence and drawing the necessary inferences there from. I accept his evidence and find as a fact that item A was, in point of fact, a copy of a letter addressed to the repondent at his postal address by registered post. This letter was delivered at his postal address and received by Eleni Christoforou. My ruling before the reception of evidence pertaining to the posting of the letter does not preclude me from receiving a copy in the absence of the original, nor my criticisms of the. conduct of the advocate. Therefore item A is admitted in evidence together with a copy of the slip issued to the advocate upon the posting of the latter and they are marked as exhibit ‘K’.

Service of Notices under Law 36/75

The respondent called no evidence in the course. The ultimate question is whether the applicant proved that he did serve on the respondent the statutory notice envisaged [*321] by the provisions of s. 16(1) (a), Law 36/75. Learned counsel for the respondent drew my attention to the fact that respondent is a displaced tenant and made reference to decisions of mine where I declined to make an order for the recovery of possession of premises used by displaced tenants as a residence applying the provisions of s.7(1) of the Lease of Premises for the Residence of Refugees (Temporary Provisions) Law, 1 978 - 56/78. The argument is, with respect, irrelevant for the application of the provisions of Law 56/78 is limited to premises exclusively used as a residence by displaced tenants. The law does not confer a similar protection with regard to business premises in the possession of displaced tenants.

Learned counsel for the respondent invited me to ignore the notice sent to the respondent in the absence of positive evidence that it was received by himself. On the other hand, the applicant, addressing me on the same subject, aided by his counsel who remained seated next to him after withdrawing from the case and assisted him in his address, invited me to hold that service was duly effected in view of the presumption arising from the service of comparable notices in England. The English authorities establish that a presumption arises as to due service if a letter is left at the dwelling house of the tenant with his wife or servant. (See Woodfall - Landlord and Tenant, 26th edition, volume 1, p. 901 et seq.) And inasmuch as Eleni Christoforou should be deemed to be [*322] the servant of the respondent we must presume that service was duly effected. The parties apparently ignore the provisions of s. 23(1), Law 36/75 that regulate, inter alia, the mode of service of notices envisaged by the law. It lays down that the onus is discharged by posting a registered letter to the last known postal address of the respondent. This duty the applicant discharged in the present case and he is therefore entitled, as of right, to an order for recovery of possession.

In the exercise of my discretion I shall suspend the order for one year having regard to the implications of the order on the work of the respondent, his personal circumstances, particularly the fact that he is a displaced tenant. The suspension will be subject to the following conditions:

1. Arrears of rent to be paid within three weeks.

2. The monthly amount for the rental, £13.-, to be paid every month without delay. There will be no order as to costs; but this will leave unaffected any order for costs already made.

Suggestion for Amendment of the Law

I should not leave this judgment without voicing my disapproval of the provisions of s. 16(1) (a), Law 36/75. My disapproval concerns the mandatory nature of the duty cast on the Court to make an eviction order without any inquiry as to the. circumstances under which rent was not paid or the implications of the order upon [*323] the tenant. There is no reason why the nature of this power to order eviction should not be qualified and made discretionary which is the case with regard to the situation arising from other breaches of contractual terms. (See, inter alia, s. 16(1) (b), Law 36/75.)

In the result, there will be an order as above, suspended for a year, provided there is compliance with the aforementioned terms. No order as to costs, subject to orders already made.

Order for recovery of possession suspended for one year.