Court lacks jurisdiction over eviction outside rent-controlled areas; ordinary courts apply instead.

[*136] 1979 January.26

(PIKIS, P.D.C.)

IN THE DISTRICT COURT OF LARNACA

Antoniou alias Antoni Thoma,

Applicant,

v.

Demetrakis Philippou and Another,

Respondents.

(Rent Application No. 142/78).

Landlord and tenant - Rent control - Controlled areas - Court established by section 6 of the Lease of Immovable Property for Residential Purposes of Refugees (Temporary Provisions) Law, 1978 (Law 56/78) not competent to take cognizance of a suit for the eviction of a tenant - Whether section 7(1 ) of Law 56/78 applicable to premises situated outside areas controlled under section 3(1) of the Rent Control Law, 1975 (Law 36/75) - And whether procedure for eviction provided by the Rent Control Rules applicable to such premises.

Observations with regard to the need of simplification and codification of the Rent Control Legislation.

A. Koukounis, for the Applicant.

M. HadjiChristofis, for the Respondent.

JUDGMENT

The following judgment was delivered by:-

PIKIS, P.D.C.: The applicant is the owner [*137] of a house at Alethrico village leased to the respondents: who are in occupation as from 6th December 1974. Application is made to the Court purportedly under the provisions of the Rent Control Law of 1976, for the ejectment of the tenants for the reason that the premises are required by the owner. The application is made in the form envisaged by the Rent Control Rules of 1975, enacted pursuant to the provisions of section 25 of the Rent Control Law of 1975 (as amended by the Amending Rules of 1975). The defendants raised in their defence objection to the jurisdiction of the Court to take cognizance of the action of the plaintiff on the ground that the premises in question are situate outside the areas subject to rent control under the provisions of s. 3(1) of the Rent Control Law of 1975 and the order made thereunder, now in force, set out in supplement 3, Part I, 1363 , No. 154 published in the Official Gazette of 8th July 1977.

At the invitation of the parties we set down for preliminary determination the question above raised, a compendious course likely to save cost and expense in the event of sustaining the submission of the respondents. A neat point arises for consideration: Whether the procedure provided for by the Rent Control Rules for the raising and determination of a matter of eviction is applicable where the premises are situate outside areas controlled under the provisions of s.3, Law 36/75. My

decision will entail, inter alia, an examination of the scope of the provisions of a recent enactment intended to regulate further matters relevant to the occupation[*138] of premises by displaced persons that is Law 56/1 978. The first matter to be considered is whether the Court set up by the provisions of Law 56/78 is competent to take cognizance of a suit for the eviction of a tenant. The answer is in the negative. The Court established by the provisions of s.6 is solely competent to hear appeals from decisions of the rent authority created by the provisions of s. 3 of the same Law. This is manifest on examination of the provisions of s.6. Section 6(1) specifically lays down that the jurisdiction of the Court is limited to the hearing of appeals made under the provisions of s. 5(5) of the same law whereas s.6(3) dispels any doubts there might otherwise exist by providing that in proceedings before the Court a party can only rely on the grounds of appeals set out in his application. Contrary to the submission of counsel for the applicant, the word "Court" in the context of the first proviso to s.7(l), Law 56/78, refers to a Court other than the one set up by s.6 notwithstanding the definition of "Court" suplied by s.2, Law 56/78. And this is clear on a review of the wording as well as purposes of the two sections of the Law, notably s.6 and s.7: The jurisdiction of the Court under s.6 is restricted to the review of decisions of the rent authority whereas s.7 is specifically aimed at granting relief from the application of the provisions of the Rent Control Law of 1975, as amended by Law 24/77. The Court competent to take cognizance of applications made under the provisions of the Rent Control Law of 1975 is that

set up by the provisions of s.4 of Law 36/75. The fact that the same [*139] Rules apply in proceedings before both Courts should not lead one

astray nor should one confuse the functions of the two Courts that operate in different fields and have, so far as I know, a different composition. This disposes of the submission of counsel for the applicant that the Court set up by Law 56/78 has jurisdiction to take cognizance of an application for the ejectment of a tenant. This does not, however, exonerate me from the task of examining the implications of s.7(1) of Law 56/78, considering, as already indicated the application was prima facie made under the provisions of the Rent Control Law 1975 and the Rules enacted thereunder. In the submission of counsel for the tenant this provision is inapplicable to tenancies of premises set outside controlled areas under the provisions of Law 36/75; whereas in the submission of counsel for the owner s. 7 is an all embracing provision intended to extent protection to displaced tenants independently of the location of the premises occupied by them. If the submission of the respondent is sustained an inevitable corolary would be that the Court created by s.4 of the Rent Control Law of 1 975 would have no jurisdiction to try the matter inasmuch as an action by writ is the appropriate means for instituting a matter before the Court, unless provision is made to the contrary; hence the present proceedings are misconceived. (See s.2 of the Courts of Justice Law 14/60 and Ord. 2, r.1 of the Givil Procedure Rules.)

I must confess I did not find it altogether easy to resolve the question. In construing the provisions [*140] s.7 I start from the premise that the rent laws enacted after 1974 constitute an important piece of social legislation primarily intended to alleviate the hardship that has befallen on the displaced population of the land who lost their home. Therefore it is right that in construing individual sections of the law one should endeavour to interpret its provisions in a manner upholding the aims of the legislature and suppressing the mischief against which they were directed. (See Orphanides v. Shiambela (1976) 1 J.S.C 103, Iacovidou v. Constantinou (1976) 2 J.S.C. 246.) However there are limits to this inasmuch as the overall aim of the Law, even where clearly discernible, cannot override specific provisions of the Law. Further, it is impermissible as a matter of statutory construction to have recourse to a repealed enactment except in the event of ambiguity. (See Richards v. Curwen (1977) 3 All E.R. 426, I.R.C. v. Joiner (1975) 3 All E.R. 1050 (H.L.).) Even in cases of consolidating enactments no recourse should be had to antecedent legislation unless there is a real and substantial difficulty that classical methods of construction cannot resolve. (See Farrell _v._ Alexander (1976) 2 All E.R. 721 H.L.) One should not attempt to paraphrase the express provisions of the statute (Seramco v. Income Tax Coms.

(1976) 2 All E.R. 28 (P.C.).) On the other hand if the provisions of a statute are open to more than one interpretation it is not only permissible but desirable as well to avoid that interpretation that would lead to a result contrary to the evident general purpose of the statute. (See Vandyk v. Oliver (1976) 1 All E.R. 466 (H.L.).) [*141]

Returning to the provisions of s.7(1 ) it is plainly stated that its application is limited to orders that may be made under the provisions of the Rent Control Law of 1975; onecannot escape from this interpretation having regard to the words "dhynami tou rithendos nomou". On any interpretation s.7 creates exceptions to the application of the provisions of the Rent Control Law. It does not extend either the application of the provisions of the Rent Control Law nor does it make its procedure applicable to cases outside its ambit. If the words "dhynami tou rithendos nomou" were omitted or if they were coupled with the words "i ioudhipote allou nomou" then one could arrive at such a result without doing violence to the express intention of the legislature. On a consideration of the general object of Law 56/78 one can justifiably discern a general purpose to grant further protection to displaced tenants. This is manifest from the establishment of the rent authority aimed at regulating rents with a view to keeping them within reasonable limits and freeing displaced persons from the burdens of exploitation that might result from the great scarcity of accommodation created by the Turkish invasion. But certainly no added protection is given to displaced tenants from eviction. On the contrary the protection afforded by s. 6 of Law 4/76 to displaced tenants of properties situate outside the controlled areas is taken away by the unqualified abolition of Law 4/76. The application of the relieving provisions of s. 7(1), Law 56/78,

is inevitably limited to premises situate within the controlled areas, [*142] leaving thereby a gap in the Law. It is

very probable that this was not the intention of the legislature but it is impermissible to speculate and certainly such speculation does not allow a Court of Law to override the will of the legislature as expressed in the statute. Reflecting that the legislature has manifestly evinced the salutary intention of protecting displaced tenants from the hazards of eviction they have failed to extend the desired protection to displaced tenants occupying promises outside the controlled areas,leaving thereby a lacuna in the law that should be filled by legislative intervention. In my opinion all displaced tenants should have a similar protection from eviction independently of where they reside. Therefore I recommend that the Law be amended as early as possible, filling the gap left in the Law.

There are other general observations I would like to register with a view to remedying what I regard to be defects of the Rent Control Legislation. The Law must be simplified and if possible codified with a view to achieving maximum clarity. The need for simplicity and clarity is particularly cogent in social legislation whore the public at large, particularly the class sought to be benefited must easily be in a position to ascertain its rights with a view to their protection. Complicated legislation riddled, as in the case of the Rent Acts, with uncertainty and confusion is anti-productive and may fail to achieve the desired result which is, in the case of tenants, particularly displaced tenants, to confer security of tenure and protect them from [*143] exploitation. At present the rent legislation is embodied in more than one enactment and it is not the product of one general design wherefrom specific rights flow. Not only must the Rent Acts be streamlined along a general and clear pattern but the procedure envisaged therein must also be simplified with a view to avoiding multiplicity of form, another obstacle to the effective protection of the tenants’ rights.

At present at least three kinds of proceedings are envisaged by the Rent legislation depending on the right one seeks to ventilate before the Court: Firstly, there is the Court set up by the provisions of s.4, Law 36/75, with jurisdiction to try applications made under the aforesaid Law. This Court has, inter alia, jurisdictotion/relax the provisions of the Evidence Law, Secondly, we have the Court created by the provisions of s.6, Law 56/78, competent to take cognizance of appeals from the the Rent Authority. In practice/composition of the above mentioned two Courts is different. Thirdly, we have the ordinary Courts of the land vested with residual jurisdiction to try all matters connected with the tenancy of premises not amenable to the jurisdiction of the first two Courts, competent to try, for example, an action for the displacement of the tenant of the premises outside areas controlled by virtue of the provisions of Law 36/75. Unlike the Court set up under s. 4, Law 36/75 the ordinary Courts are bound by the rules of evidence. In my respectful view the need for clarity and coherence in rent

legislation is urgent, if we are to disabuse displaced tenants [*144] of their fears and anxiety that the scarcity of

accommodation created by the Turkish invasion of the island will work to their detriment. They should, in planning their day to day affairs, have a clear view of the security of tenure they are entitled to enjoy under the law as well as the fact that the rent they may be required to pay will not be allowed to rise unreasonably so as to defeat their security of tenure.

Application dismissed.