The Judicial Committee of the Privy Council Decisions

Privy Council Appeal No. 13 of 1997

 

Gloria Morales Appellant

v.

Stella Young Respondent

 

FROM

 

THE COURT OF APPEAL OF TRINIDAD

AND TOBAGO

 

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REASONS FOR DECISION OF THE LORDS OF THE

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL,

OF THE 16th December 1997, Delivered the

18th December 1997

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Present at the hearing:-

Lord Goff of Chieveley

Lord Lloyd of Berwick

Lord Steyn

Lord Hope of Craighead

Mr. Justice Gault

  ·[Delivered by Lord Goff of Chieveley]

 

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1. This appeal is concerned with commercial premises at Carrington Street, Scarborough, on the Island of Tobago.  The premises were the property of Abraham Morales.  He let a small area to Young Kow, who used it as a grocery store.  The rent for the store was $40 per month, and accordingly the premises were controlled premises for the purposes of the Rent Restriction Ordinance of Trinidad and Tobago.  Subsequently, following an assessment by the Rent Assessment Board, and an appeal to the Court of Appeal, the rent was, by a consent order, varied to $90 per month on 1st August 1977.

 

2. Abraham Morales died on 21st September 1959.  The appellant in this appeal, Gloria Morales, is his daughter and the  executrix  under  his  will.  The respondent, Stella Young, is the widow and executrix of Young Kow, who has also died.  She succeeded her husband as tenant of the grocery shop.

 

3. On 2nd October 1979 the appellant started proceedings in the Scarborough Magistrate's Court for the recovery of possession of the shop.  She did so because she wished to implement a substantial scheme for development of a shopping complex on the site, for which she had obtained planning permission.  She claimed that she could do so, unimpeded by the provisions of the Rent Restriction Ordinance, on two alternative grounds, viz: (1) the premises were reasonably required by her for certain purposes, including in particular demolition and rebuilding for redevelopment, as specified in provisions of section 14 of the Rent Restriction Ordinance, and/or (2) following the fixing of the standard rent at $90 per month on 1st August 1977, the premises had become decontrolled by virtue of the Rent Restriction (Exclusion of Premises) Order 1969 ("the Exclusionary Order").

 

4. The application was heard by the Senior Magistrate, Mrs. Gladys Gafoor.  A hearing took place on 3rd and 24th March 1980, at which evidence was heard and submissions made by counsel for both parties.  On 25th April 1980, the Senior Magistrate made an order for possession in favour of the appellant.  She gave no reasons for her decision.  However on the same day the respondent gave notice of appeal to the Court of Appeal.  Their Lordships were informed that the notice operated as a stay of the order for possession.

 

5. A long period of delay then occurred.  It appears that the record of the proceedings before the Senior Magistrate was not made available to the Court of Appeal by the Clerk of the Peace of Tobago until after 16th August 1991.  At all events, the appeal was not heard until the autumn of 1995.  Judgment was given on 13th November 1995, when the respondent's appeal was allowed and the order for possession made by the Senior Magistrate was revoked.  The appellant was ordered to pay the costs of the appeal.

 

6. The reasons for the Court of Appeal's decision were as follows.  They proceeded on the basis that the Senior Magistrate made an order for possession on the grounds that the premises were decontrolled by virtue of the Exclusionary Order,  having  regard  to  the increase in the rent to $90 per month, or $1,080 per year, which took effect on 1st August 1977.  However that conclusion was, as the Court of Appeal held, misconceived.  This was because the effect of the Exclusionary Order was to decontrol as from 12th June 1970 all commercial premises the standard rent of which exceeded $600 per year on 11th February 1969.  On that date however the rent for the premises in question was still only $40 per month or $480 per year, the increase to $90 per month or $1,080 per year not having taken effect until 1st August 1977.  It followed that the Senior Magistrate was wrong to make an order for possession on the basis that the premises had been decontrolled.

 

7. On 7th October 1996 the Court of Appeal granted leave to appeal to the Privy Council.  On the appeal before their Lordships the appellant was represented by Dr. Ramsahoye S.C.  The respondent did not appear and was not represented.  Their Lordships were much assisted by Dr. Ramsahoye's submissions.

 

8. The case advanced by Dr. Ramsahoye was as follows.  First, although the Senior Magistrate gave no reasons for her decision to make an order for possession in favour of the appellant, nevertheless it was plain that she must have concluded that she was free to do so not (as the Court of Appeal thought) on the basis that the premises in question had become decontrolled following the fixing of the standard rent at $90 per month, but on the ground that they were required by the appellant for redevelopment.  This conclusion Dr. Ramsahoye drew both from the evidence and the argument as they proceeded before the Senior Magistrate, as derived from the record of the hearing before her, and from the form of the order for possession made by her on 25th April 1980.  It is enough for present purposes to record that their Lordships saw considerable force in this submission.  From this it followed, submitted Dr. Ramsahoye, that the Court of Appeal erred in concluding that the decision of the Senior Magistrate was based on the conclusion that the premises in question had become decontrolled, and by deciding on that basis that the appeal must be allowed without reference to the alternative argument advanced by the appellant before the Senior Magistrate.  He therefore submitted to their Lordships that the appeal from the Court of Appeal should be allowed, or alternatively that the matter should be remitted to the Court of Appeal to be considered by them on what he submitted was the correct basis.  In advancing this submission, however, Dr. Ramsahoye faced the great handicap that, at the hearing before the Court of Appeal, both parties were represented by counsel; and that at no time did counsel for the appellant appear to have suggested to the Court that the decision of the Senior Magistrate was based on any other ground than that the premises had become decontrolled.  Furthermore it transpired in the course of argument that it was open now to the appellant to commence fresh proceedings for possession, which could be considered in the light of the circumstances as they exist today, rather than in the circumstances as they existed over 17 years ago.  When Dr. Ramsahoye invoked the long delay which had occurred in the hearing of the appeal as a reason why their Lordships should prefer the more expeditious course of remitting the matter to the Court of Appeal, their Lordships were driven to comment that no steps appear to have been taken on behalf of the appellant to expedite the hearing of the appeal, in order that the stay on the possession order might be lifted.

 

9. In these circumstances their Lordships concluded that it would be wholly inappropriate for them to interfere with the decision of the Court of Appeal.  It was, their Lordships considered, unnecessary to consider the formal question whether they would be entitled to do so; it was enough that the interests of justice clearly required that the decision of the Court of Appeal should be allowed to stand.

 

10. It was for these reasons that, at the close of the hearing of the appeal, their Lordships announced their decision that the appeal should be dismissed.

 

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